1 C.L.R. 1984 September 11 [Lows,}.] IN THE MATTER OF AN EX PARTE APPLICATION BY PETROS YEROLEMIDES FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION (Chit Application No. 57/84). 5 10 15 20 25 30 Certiorari—Prohibition—Jurisdiction—Article 155.4 of the Constitution—Execution of warrants for the levy of penalties imposed inacriminalcase—Aftersixyearshaveelapsedsince theimposition of thepenalties—Prima facie arguable casethat warrants ought not to havebeenissued without priorcompliance withthe provisionsof Order 40, rule 8 of the CivilProcedure Rules,which areapplicable towarrantsissuedundersection 120ofthe Criminal Procedure Law, Cap. 155, as envisaged by section121 of Cap. 155—Leave to applyfor an order of certiorari quashing and an orderof prohibition preventing executionof the said warrants. The applicant sought leaveto apply for an order of certioraii quashing, and an oider of prohibition preventing, the execution of iwo warrants issued by the District Court of Nicosia, in Nicosia Criminal Case No. 7780/71 for the levy of penalties tolalling £12,948. Counselfor applicant contended that ihe said warrantswhich were based on judgment and/or order given on 9.7.1971 were issued in direct violation of the Law and the relevant Rules made thereunder in view of the fact that no leave was ever obtained or even applied for, prior to the issue of the said wairants,asrequiredbyOrder40,rule8 oftheCivilProcedureRules - which are applicable to the execution of any warrant issued under the provisions of s.120 of the Criminal Procedure Law, Cap. 155, by virtue of the provisions of s.121 of Cap. 155. Held,
(1)that this Court has jurisdiction under Article 155.4 of the Consti'ution to deal with the present application.
(2)That at this stage it would appear that the applicant has a prima facie arguable case that the two warrants attached to the present application ought not to have been issued without prior compliance with the provisions ofOrder 40, rule8 of the 555 IDre YerofcmMes
(1984)Civil Procedure Rules, which are applicable to warrants issued under s.120 of the Criminal Procedure Law, Cap. 155, as envisaged bys.121 of Cap.155;andthat,accordingly, the applicant isgranted leave toapplyfor ordersofcertiorari and prohibition within 7 days from today. 5 ' Application granted. Cases referred to: Yerolemides v. Municipality of Nicosia
(1971)10 J.S.C. 1347; Ramadan v. ElectricityAuthorityof Cyprus and Another , 1 R.S.C.C. 49 at p. 54; 10 ZeniosandAnotherv. Disciplinary Board
(1978)1CL.R. 382; Republicv. Demetriades
(1977)3 CL.R. 213; Vassiliou andAnother v. Disciplinary Committee
(1979)1CL.R. 46 at p. 49; In re Panaretou
(1972)1 CL.R. 165; 15 In re Roushids
(1981)1CL.R.
- Application. Application for leave to apply for an order of certiorari quashing and an order of prohibition preventing, the execution of two warrants issued by the District Court of Nicosia in 20 Nicosia Criminal Case No. 7780/71 for the levy of penalties totalling £12,948.-. L.N. Clerides with C. Clerides, for the applicant. Cur. adv. vult. LORISJ. read the following decision. Bymeans of the present 25 application, the above named applicant seeks leave to file an application for an order of certiorari quashing, and an order of prohibition preventing, the execution of two warrants issued by the District Court of Nicosia, in Nicosia Criminal Case No. 7780/71 for the levy of penalties totalling £12,948 as herein- 30 below stated. . Theapplicationisaccompanied byan affidavit dated 16.8.1984 sworn by the ex-parte applicant to which photocopies of the warrants in question are attached which aie referred to in the affidavit as exhibits 4 and
- Both thesewarrants are"warrants of execution on movables", obviously issued pursuant to the provisions of s. 120 of our 556 35 1 C.L.R. Ια re Yerolemides Lorls J. Criminal ProcedureLaw, Cap. 155, and they refer to.Nicosia, Ciiminal Case No. 7780/71; they are purported to have been signed by different judges of the District Court of Nicosia. Exhibit 4 which bears Sheriff No.2549/78was issued on 7.
- 5 1978 and the penalty therein shown is £6,207.-; at the bottom thereof it is indorsed: "Finepayable toMunicipality ofNicosia, for the period 28.5.1972—25.1.1978". Exhibit 5 with Sheriff No. 1031/84 was issued on 27.4.1984 and the penalty therein indicated is £6,741.-; it is likewise 10 indorsed "Finepayable to Municipality,for theperiod26.1.1978 -5.4.1984". Leading counsel for the applicant addressing me in support of his client's present application elaborated on the contents of theaffidavit andieferred meto thecase of Petros Yerolemides 15 v. The Municipality of Nicosia cited only in
(1971)10 J.S.C. 1347 decided by the Court of Appeal on 9.7.1971, pointing out that the said appellant is his client in the present application, and that the amount of the penalty referred to in both said warrants emanatesfrom the substitution of theoriginal sentence 20 of 1month's imprisonment (imposed by a Judge of the District of Nicosia, in Nicosia Criminal'Case No. 7780/71) with afine per day as stated at page 1349 of the report, the relevant part of which reads as follows: 25 "Having taken into account we have decided to sentence him to pay a fine of 500 mils per day (instead of the maximum of £3.- per day) as from the 19th March, 1971, until the 31st July, 1971, and thereafter, if he still fails to obey the Court Order in question, £3.- per day until full compliance therewith". 30 Learned counsel for applicant further stated that inspite of the fact that warrant exh. 4 was issued as early as 7.2.1978 and exh. 5on 27.4.1984, it was only as late as thebeginning of August 1984, few days prior to thefilingof present application, when P.C. 223 of Omorphita Police Station visited the store 35 of applicant at Nicosia armed with the two warrants as afore said andasked applicant topay;thiswas thefirsteffort—counsel concluded—for theexecution of the warrants andon applicant's indicating his intention to resort to Court the police constable 557 Loris J. Ιο re Yerolemides
(1984)lefrained from proceeding any further; few days later the present application was filed. Relying on the above facts counsel for applicant submitted that both aforesaid warrants which were based on a judgment and/or order given on 9.7.1971 were issued in diiect violation 5 of the Law and the relevant Rules made thereunder in view of the fact that no leave was ever obtained or even applied for, prior to the issue of the said warrants, as required by Order 40, rule 8 of our Civil Procedure Rules which are applicable to the execution of any warrant issued under the provisions of 10 s. 120 of the Criminal Procedure Law, Cap. 155, by virtue of the provisions of s. 121 of Cap.
- Section 121 of the Criminal Piocedure Law, Cap. 155 reads as follows: "
- Subject to the provisions of section 120 of this law, the 15 provisions relating to execution of judgment debts in civil proceedings under any enactment in force for the time being, shall apply to the execution of any warrant issued under the provisions of section 120 of this Law". Order40, rule8 of our Civil Procedure Rules reads as follows: 20 "
- Where six years have elapsed since the judgment or date of the order, or where any change has taken place by death or otherwise in the parties entitled oi liable to execution may apply to the Court or a Judge for leave to issue execu tion accordingly. And such Court or Judge may, if satis- 25 fled that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determinethe rights of the parties shall be tried in any of the ways in which any question in an action may be tried. And in either case the Court 30 or Judge may impose such terms as to costs or otherwise as shall be just". Concluding leading counsel for applicant invited me (a) to find that I have jurisdiction to deal with the present application stating that "anything emanating from a Court is a judicial Act". (b) to grant the leave applied for the filing of application for Orders of Certiorari and Prohibition as a prima 558 35 ] C.L.R. In re Yerolemides Loris J faciecase wasmadeout sufficiently justifying the grant ing of the leave requested. The power of the Court to issue orders of certiorari ant prohibition emanates from the provisions of Article 155.* 5 of our Constitution which reads as follows: "
- The High Court shall have exclusive jurisdiction to issu< orders in the nature of habeas corpus, mandamus, prohi bition, quo warranto and certiorari". 10 15 20 "The jurisdiction of the Supreme Court under Articl155.4 is exclusive of the jurisdiction specifically entrustet to the Supreme Constitutional Court, and now to th* Supreme Court in virtue of Law 33/64, under Article 146'" (vide Frangos v. Medical Disciplinary Board
(1983)1CL.R 256 at p. 259 (25-30). The above principle was laid down by the then Suprenr Constitutional Court as early as 1961 in the case of Husseii Ramadan v. Electricity Authority of Cyprus and another, R.S.C.C. 49 where at p. 54 the following are stated: "In the opinion of this Court the powers of the Higt Court to issue the orders set out in paragraph 4 of Articl» 155extend only to such matteis which are within the juris diction of the High Court and which are not already withij the jurisdiction of the Supreme Constitutional Cour under paragraph 1 of Article 146". 25 With the above principles in mind I shall now proceed t< examine whether 1have jurisdiction to grant the leave applie< for, inthisparticular instance,as1 wasinvited to hold bylearnet counsel for applicant. It is true that my task should be limitct at this stage in view of the decision in the case of Zenios an> 30 Another v. Disciplinary Board
(1978)1 CL.R. 382 where thmajority of the Full Bench expressed the view (at p. 387) tha as the issue ofjurisdiction is interwoven with other issues whic! go tothe meritsof the application, it should beleft to bedecide» together with all other relevant issues when deciding the man 35 application for the issue of the order. I have studied carefully the above decision—that binds m· (Republic v. Demetriades
(1977)3 CL.R. 213)—and I inclin· to the view that the interpretation that can be placed on thei 559 Loris .i. -In re Yerolemides
(1984)said opinion as above, is to the effect that in applications of this nature the trial Judge should not indulge into the merits of .the application in order to decide complicated issues intorvwoven with jurisdiction, but they do not excludc.an examination on the issue of jurisdiction when confined on undisputed texts 5 apparent on the face of the proceedings. Xhisview of mine.isstrengthened by thedecision of the learned •.^resident .of .this Court in .the case of Vassiliou& Another v. .Disciplinary Committee
(1979)1 CL.R. 46—delivered a year after Zenios case (supra)—where at p.49 hehas stated thefollow- 10 .ing: "I must be satisfied, at least prima facie, that under the circumstances, I possess jurisdiction under Article 155.4 of the Constitution to issue the orders of Certiorari and Prohibition which arc applied for by the applicants". 1,5 Having considered what is apparent on the face of the ivcord of the proceedings before me and bearing in mind thai in paral lel! occasions to t!u; present one leave was granted for thefiling of applications for issue of order.; of certiorari, (vide.: In re l\itkra-!ou
(1972)! C U R . 165, in re Roussias & Co.
(1981)20 ! iCL.R. 703) I J:o!d thi'.t ! have jurisdiction under Article l:">5.4 of the Conwinitio:ι io d-ra! viiih present application. Tl;<j question which now remains for determination at this -.i .£o is whether a prima facie ease v-as made out sufficiently ι·) justify lh,e granting vf leave ίο the applicant ίο move this 2:> ,i"'oi'.rl to issue orders of certiorari and prohibition. "it is not cv;ccssary for -me to go now, into the matter Thoroughly, bui is sufficient if yutl;.·..· face oi"the applicant's slau.num, and tiu; f:iT;di.vit in support tko Couit is satisfied iluit such leave should be granted (Ex Parle Aiarnullcii Γ-0
(1972)1 C U R . 75). At this stage it would appear that the applicant has a prima facie arguable ease that the two warrants exh. 4 and exh. 5 attached to the present application ought not to have been issued without prior compliance with the provisions of Order 40, rule 8 of the Civil Procedure Rules, which are applicable to wairants issues under s. 120 of Cap. i55, as envisaged by s. 121 of Cap. 155. 560 35 t CL.R. Loris .J. In re Ycr-ileniides In the result, the applicant isgranted leave to apply for orders of certiorari and prohibition within 7 days from today. Opposition to be filed seven days thereaftci. The application is fixed for hearing on 12.10.19S4 at 10.00 5 a.m. In the meantime the execution of warrants marked e\h. 4 and exh. 5 in the present proceedings is hereby stayed. Application granted. 561