1C.L.R. 1987January26 (STYLIANIDES JI IN T H E MATTER OF A N A P P L I C A T I O N BY OR O N B E H A L F OF MR C H A R A L A M B O S T H E O P H A N O U S ARGYRIDES A G A I N S T W H O M A RULING A N D / O R A N ORDER C O M M I T T I N G H I M FOR T R I A L WERE M A D E BY T H E DISTRICT C O U R T O F NICOSIA (BY Η Η Ε P A P A D O P O U L O U , A G D J )O N T H E 10 1 87 FOR LEAVE T O APPLY FOR A N ORDER OF CERTIORARI (Civil Application 5 No 14/87; Prerogative orders—Certiorari—Leave to apply—Principles applicable—'Prima facie case*—Meaning—Error of law apparent on the face of the record— Affidavit evidence inadmissible—Misapplication of law is an error of lau Grant or refusal of leave within the discretion of this Court—Such discretion isexercisedjudicially—Purpose of the order of certioran On 10 187 Cnminal Case568/87 was filedin the District Coun of Νιςν-ι<» Two persons appear as accused in the charge sheet Accused 1 ttie piesei ι applicant, faces no' less than 31 chargesof offences olforgen. taisir.catu'n accounts by public officer stealing by public officerand animal stealing 1" —15- The officer appeanng for the prosecution producedthe written (.OIIMM. υ theAttorney-General totheeffectthatthereu as no nei.ewt\, for a pre1 nηin ii\ inquiry Then he produced a copy of the statements of the witnesses uhii_h run to 250 pages After a«short break»the Judge issued the order impugned in theseproceedings,committingtheaccusedfortnal beforetheAssize Coun — of Nicosia sittingon 12 187 20 Counsel for the applicant argued that as it is impossible for am, human being to read 250 pages the co nmirnng Judge did not read apparently tht; statements and exercised her discretion in a faults U<*A then bt. mivippkm^ the provisions of section3 of theCriminal Procedure (]emporan, Prm isiono Law42/74 Thismtscompliance isan error of lau -ippaiont on tin M i . n*the recordt £* Held, granting leave toapplv foran order ot certmr.m i l l In ihi mtidavit in support of the application it isstated that the break of the sittingot ihe Coun was 15-20 minutes It may be said, even at this stage that when ι ertioran is sought foran errorof law apparent on the faceof the recordaffida». it evident t is not, as arule, admissible, for the simple reason that the error must appear on the record itself Affidavits are admissible to show that the record is incomplete,whereupon thisCourt would eitherorder itscompletionor might quash thedetermination Only affidavits put inbyconsent asif they were port 23
(1987)I n re Argyridee of the record, are admissiole {2)Misapplication of the law isan error of law
(3)At this stage the Court must be satisfied by the material before it that a pnma facie case is made out or an arguable point israised The expressions «arguable case»and «pnma facie case»are used in the sense of a case that it issufficient that the applicant to show that there isabona fide arguable case, without the need to go into any rebutting evidence put forward It is a case which is sufficiently arguable and ments an answer In this case the material beforethe Court justifies theconclusionthat anarguable casehasbeenmade 5 ~ out 10
(4)The grantingorrefusalofleavetoapply foranorderofcertioraniswithin the discretion of this Court, which is exercised judicially The supervisory power of this Court does not extend to the dictation by this Court to the infenor Court how to exercise its discretionary power
(5)In the light of the above leave toapply for an order ofcertioranwould be granted 15 Application granted Casesreferredto R ν Northumberland Compensation Appeal Tribunal, Ex-parteShaw[1952) 1A11ER 122, 20 AnismmicLtd ν Foreign Compensation Commission [1969] 1All Ε R 208, O' Retlly ν Mackman and Othersand Other Cases [1982]3 All Ε R 1124, R ν Registrar of Companies [1985]2 All Ε R 79, R ν Nat Bell Uquors Ltd [1922] 2 A C 128, Baldwin and Francis Ltd ν PatentsAppeal Tnbunal and Others [1959]2 All 25 E R 433, Sidnellv Wilsonand Others [1966] 1All Ε R 681, Land Securities Pic υ Receiver for the Metropolitan Police District 1(1983] 2 A11ER 254, Ex-panePapadopoulos
(1968)1 C LR 496, 24 30 1C.L.B. InreArgyrides £x-parteMarou/etti
(1970)1 C.L.R.75, InrePanaretou
(1972)1C.L.R.165; Zeniosv DisciplinaryBoard
(1978)1CLR.382; InreAzmas
(1980)1C L.R.466; 5 InreMalikides[l980) 1C LR.472; InreKakos
(1984)1C.L.R.876, InreKakos
(1985)1 C.L.R.250. Application Application for leave to apply for an order of certiorari for the 10 purpose of bringing up and quashing the order in Criminal Case No.568/87 committing the applicant for trial before the Nicosia AssizeCourt and tor an order stayingthe proceedings betore the AssizeCourt Nicosia inrelation tothe applicant. A, Markides withChr. Triantafyilides for the applicant. 15 STYLIANIDESJ.readthefollowingjudgment. Bymeansof this application the applicant seeks leave to apply for order of certiorari in order to bring up and quash the committal order in Criminal Case No.568/87 whereby he was committed for trial before the Nicosia Assize Court and an order staying all further 20 proceedings before the Nicosia Assize Court in relation to the applicant. " "~ - -• - - - By the prerogative order of certiorari this Court exercises control overall inferior courts,not inan appellate capacity, butin asupervisorycapacity.Thiscontrolextendsnotonlytoseeingthat 25 theinferiorCourtskeep withintheirjurisdiction, butalsotoseeing that they observe the law.The control isexercised by meansof a powertoquashanydetermination bytheCourtwhich,onthe face ofit,offends againstthelaw.ThisCourtdoesnotsubstituteitsown viewsforthoseoftheinferiorCourt,asacourtofappealwoulddo 30 Itleaves itto the inferior Court to hear the case again, and in a proper case may command it to do so - (R. v. Northumberland Compersation Appeal Tribunal, Ex-parteShaw, {195211AllE.R. 122). 25 StyUanlde·J. InreArgyride·
(1987)Bythe Northumberlandcase itwasrediscovered thattheHigh Court in England -and by extension this Court -haspower to quash byan order of certiorariadecision ofan inferior Courton the ground that it is apparent on the face of its written determinationthatithasmadeamistakeastotheapplicablelaw. 5 IftheinferiorCourtmistookthelawapplicabletothefacts,asit found them, or ifitspurported «determination» isnotwithin the •meaningoftheempoweringlegislation,thisisanullity-(Anisminic Ltdv. ForeignCompensationCommission, [1969]1AllE.R.208; O'ReMy v.Mackman andOthers andOtherCases, [1982]3All 10 E.R.1124,R.v.RegistrarofCompanies, [1985]2AllE.R. 79). v Misapplication ofthelawisanerroroflaw. t Inthepresent caseon 10.1.87 CriminalCaseNo.568/87was filed in the District Court of Nicosia. Two persons appear as •accused inthe charge-sheet-(See ExhibitNo.l).AccusedNo.l is 15 the present applicant. He faces not less than 31 charges of Offences of forgery, falsification of accounts by public officer, stealing by public officer and animal stealing. The accused appearedbeforeaJudge.Theywererepresentedbycounsel.The chargeswerereadovertothem. ^ Theofficer appearingfortheprosecutionproducedthewritten consent of the Attorney-General to the effect that there was no necessity for the holding of a preliminary inquiry in this case. Then he produced tothe Court a copy of the statements of the witnesses,asprescribedinSection3(b)oftheCriminalProcedure 25 (Temporary Provisions) Law, 1974 (No. 42 of 1974). Another copy had been handed earlier on that day to counsel for the accused. After a short break theJudge issued the order in question. It reads:- 30 •!amsatisfiedthattheprovisionsofs.3ofLaw42/74have beencompliedwith.Iamalsosatisfiedthatinexhibit«B»there issufficientevidencethatjustifiesthecommittaloftheaccused to trial before the Assize Court without the necessity of holdingapreliminaryinquiry. 35 Theaccused arecommitted fortrialbytheAssizeCourtof Nicosiasittingon12.1.87». 26 1 C.L.R. InreArgyrldes StylianidesJ. The grounds on which leave is sought, as set out in the application, are thatthesaid orderis inexcessand/orabuse of the powers of the Court and/or there is an error of law on the face of the record in that the honourable Court failed to exercise its 5 discretion and/or judicial power, as provided by Law 42/74, as amended In the affidavit sworn by the applicant in support of this application itis stated, inter alia, thatthe break of thesitting of the Court was 15-20 minutes Itmay be said even at this stage that 10 when certioran issought onthe ground of error of law onthe face ofthe record,affidavit evidence isnot,as arule,admissible, forthe simple reason thattheeror must aDDearonthe record itself -(R ν Nat Bell Liquors Ltd, [1922] 2 AC 128, per Lord Sumner at ρ 159; Baldwin & FrancisLtd ν Patents Appeal Tnbunal and 15 Others [1959] 2 All ΕR 433, per Lord Tucker, at ρ 443) Affidavits are admissible to show that the record is incomplete whereupon this Court would either order the record to be completed by the infenor Court, or it might quash the determination at once Only affidavits put in by consent of the 20 parties as if they were part of the record, and make it into a speaking order are admissible At this stage the Court is dealing with an application for leave TheCourtmust besatisfied by thematenal before it,ifaccepted as accurate, thata pnma facie case is made out or an arguable point 25 is raised A pnma facie case should be made out sufficiently to justify thegranting of leave tothe applicant tomove this Court to issue an order of certioran The expressions «arguable case» and «pnma facie case*are used inthesense of acase thatitis sufficient that the applicant should show that there is a bona fide arguable 30 case, without the need to go into any rebutting evidence put forward. It ts a case which is sufficiently arguable and ments an answer -(Sidnell ν Wilsonand Others. [1966J 1 All ΕR 681 at ρ 685, Land Secunties Pic ν Receiver for the MetropolitanP<>hce District, [1983]2 All ΕR 254, at r 258, Ex-p*rtePapadopoulos 35
(1968)1C L R 496, Ex-parteMaroulleti. (19?U) 1 C L R 75 In n· Panaretou,
(1972)1 C L R 165, Zemos ν Disciplinary Board
(1978)1 C.L R 382, In re Azmas,
(1980)1 C L R 466. In η Malikides,
(1980)1C L R 472, In re Kakos,
(1984)1C L R 876. Inre Kakos,
(1985)1C L R 250) 40 Counsel for theapplicant submitted thatthere isan errorof law 27 StyUanldeaJ. InreArgyrlde·
(1987)apparent on the face ofthe record in the sense that though the statements of the witnesses run to 250 pages, the committing Court, after a«shortbreak»,exerciseditsdiscretionandmadethe committal order. It is impossible for any human being to go through 250pages insuchashortperiodastheshortbreakwas. 5 ThecommittingJudgedidnotreadapparentlythestatements,and exercised its purported discretions in a faulty way thereby misapplying the provisions of Section 3 of Law 42/
- This miscompliance is an error of law apparent on the face of the record. Withoutatthisstagebeingnecessarytodecideonthevalidityof theabove contentions ofcounselfortheapplicant,the functions ofthecommittingCourtunders.3ofLaw42/74andwhetherthe alleged miscompliance occurred, I think thatthematerial before ,mejustifies theconclusionthatanarguablecasehasbeen made 15 outsufficiently tomeritfurther considerationalterleaveisgivento theapplicant. 10 Thegrant orrefusal ofleavetoapplyforanorderofcertiorari arewithinthediscretionofthisCourtwhichisexercisedJudicially (In rePanaretou (supra)).Certainly ithas to be noted that the 20 supervisory power of this Court by the prerogative order of certiorari does not extend to the dictation by this Court to the inferior Court how to exercise its discretionary powers - (In re Malikidessupra). Inviewof the above Ihave decided to grant to the applicant 25 leavetoapplyfororderofcertiorariinrespectofhiscommittalfor trialbytheAssizeCourtofNicosia. Itwas brought to my knowledge by learned cou,nsel that the case islisted for today before the Assize Court of Nicosia.This denotesthatthereisurgencyintriematter. 30 Theapplicanttofileapplication notlaterthannoonof27.1.
- CounselfortheRepublicmayfileoppositiontheretonotlaterthan noonof31.1.87,andtheapplicationtobefixedforhearingbythe Registraron4.2.87at4.00p.m. Proceedingsbefore theAssizeCourtinCriminalCaseNo.568/ 87inrelationtotheapplicantareherebystayeduntilfurtherorder bfthisCourt. Copy of my present order to be sent to the Registrar of the on 35 1C.L.R. InreArgyrlde· Stytianid«*J DistrictCourtofNicosiaandtotheAssizeCourtsittingatNicosia. Leavegranted^Proceedingstobestayeduntilfurther notice. Application granted, 29