(1987)1987 May 14 1SAWIDES J | ANASTASSIAC HAMBOU, Respondent-Plaintiff, ν ANDREASTHOMA Apphcant-Defendant (ApplicationNo 57/87) CivilProcedure— Preliminarypointof law—Order 27,r 1of the CivilProcedure Rules—Importance ofrule—Application thereundershouldbe made on the Summons for Directions or at the close of the pleadings or very shortly thereafter — Needof Judicialcontrol of the exerciseof the nght undersaid rule — Matter of granting or refusing an application thereunder left to discretion of the Court — An application under the rule was filed by the defendant on 4 3 87 and heardon 11 4 87, whilstthe casehad alreadybeen fixed for heanng on 14 4 87 — Decision that preliminarypoint be dealt together withthe substance of the case— Discretion correctlyexercised 5 PrerogauJeOrders— Prohibition— Leave toapplyfor—Pnnciples applicable— Discretion of the Court 10 The applicant is the defendant in an action before the Distnct Court of Lamaca for the recovery of possession of certainimmovable propertyand for damages by way of rentand/ormesne profits untildelivery of the premises On 19 7 86 the applicant applied for leave to amend his defence in the actionby theadditiontheretoof apreliminary objection thattheCourthadno jurisdiction totry thecase On21 Π 86 theapplication was granted The action was eventually fixed for heanng on 14 4 87 On 4 3 87 the defendant applied for heanngof thepreliminary point of law thatinvirtue of Law 79/86thepremises became rentcontrolledand,therefore, subject tothe Jurisdiction of theRentControlCourt 15 20 The application, which was opposed by theplaintiff, was eventually fixed forheanngonll 4 8 7 Afterheanngcounselontheissue.thePresidentofthe District Court decided that the aforesaid point should be dealt with the substance of thecase 370 25 1 C.L.B. H a m b o u v. Thoma As aresultthedefendant filedthisapplication forleave toapply foranorder ofprohib.tion Held refusingleave toapply foran oiae~of prohibition 5 10 15
(1)The importance ofOrder 27 rule 1ofthe Civil Procedure Rules has beenstressedin anumber ofcases The advantage underOrder 27shouldbe taken either on the summons fordirectionsor atthe closeof thepleadings or very shortlythereafter Counsel shouldnotwait tillthecaseisfixedfortrialand shortly beforethe dateofheanngavailthemselves oi thepioccdureandthus secureanadjournment of theheanng which otherwise mightnotbegranted Ifthe nght under the Order isleft tobeexercised without any Judicialcontrol then there may be anabuse ofit and a party who wishes toprotract the proceedings may use it to adjourn the heanng Thisiswhy it isleftwithin the discretionoftheCourt todecide whether tograntor notan applicationunder the order
(2)The granting of leave to issue a prerogative order is a matter of discretion which should bespanngly exercised, bearing in mind that the applicant should make out a pnma faciecase
(3)The applicant in this case failedtomake out apnma faciecase The tnal Judge nghtly exercised hisdiscretion 20 Application dismissed No order asto costs Casesrefened to Chnstofi and Othersν lacovidou
(1986)1 CL R236 Michaehdesv Diaftou
(1968)1 C L R 392, 25 Paschalisν Ship <T4N!A MARIA*
(1977)1CL R53, Overseas Shipp ngand Forwarding Co ν Kappa Shipping Co Ltd and Others
(1977)1 C L R 248, Michael ν United Sea Transport Co Ltd
(1981)1CL R 322, Everett ν Ribbands [19521 2QΒ198 30 Application. Application for leave to apply for an order of prohibition prohibibngthe DistrictCourtofLamacafrom further proceeding withthe heanngofCivilActionNo 643/84 Ε Karaviohs,for the applicant 35 Cur adv vult 371 Hambouv.Thorn*
(1987)SAWIDES J. read the following judgment. This is an application for leave to apply for an order of prohibition prohibiting the District Court of Lamaca from further proceeding withthehearingofcivilactionNo.643/84fixedforhearing before it, The facts of the case asemanating from the affidavit before me and the written address of counsel for applicant, are briefly as follows: An action was instituted against the defendant-applicant for recovery of possession of certain property and for damages by 10 wayof rentand/or mesneprofitsuntildeliveryofthepremises.An appearance was entered by the applicant-defendant and his defence wasfiled intheproceedings. Infactthe casewasready to befixedfor hearing and wasin factfixed formention on 6.6,1986 and was adjourned for hearing. Prior to the hearing the Rent 15 Control Law was amended to include certain additional areas within the definition of a controlled area. Asa result, counsel for the defendant on the 19thJuly, 1986applied for an amendment of the pleadings by the addition thereto of a new paragraph (paragraph 12) raisinga preliminary objection that the Courthad 20 no jurisdiction to try the case and that the matter was within.the jurisdiction of the Rent Control Court. Such application was granted on 21.11.
- No summons for directions was applied forbycounsel for applicantpraying,interalia,forthefixingofany preliminary point of law prior to the hearing and the action was 25 eventuallyfixed forhearingonthe 14thApril,1987,afterthelapse of nearlythree yearsfrom itsinstitution. Onthe4th March, 1987, applicant's counsel submitted an application to the Court for the hearing of the preliminary point of law that the premises in question under the enactment of Law 79/86 became rent 30 controlled premises and, therefore, subject to the jurisdiction of the Rent Control Court.The application was eventually fixed for hearing on the 11th April, 1987 and the President of the District Court of Lamaca after hearing counsel on the issue, which was strongly opposed by counsel for plaintiff, decided that the 35 preliminaryquestion oflawshouldbedealtwithtogetherwiththe substance of the action which had already been fixed for hearing onthe 14thApril,
- Though the record before me is not complete, it may be assumed that the learned President decided soinviewofthefact 40 that the action had already been fixed for hearing and wasto be heard three daysafter the date when the application came up for hearing before him. 372 5 1C.L.R. Hambouv.Thoma Savvtd*·J. Asa result, the applicant filed the present application praying for leave to issue an order of prohibition prohibiting the District Court of Lamaca from further proceedingwith thehearingofthe case before it dealt with the preliminary point of law raised. It 5 should be observed that no appeal wasfiled against the rulingof the learned trialJudge. I need not repeat the principles governing the granting or . refusing of an application for leave to apply for an order of certiorariormandamusorprohibitionastheyhaveexplicitlybeen 10 stated in a number of cases of this Court (see, inter alia, the recent case of the Full Bench Christofiand Others v. lacovidou {1986}1 C.L.R. 236inwhichreference ismadetoaseriesofcases decided byourSupreme Courtand alsobytheEnglish Courts). It iswell settled by our case law, following in this respect, the 15 English case law which is based on th.e corresponding English Rules (Order25 of the Rulesof theSupreme Court in Englandof 1958,theoldrulesapplicableinCyprus)thattheobjectofthisrule istosave time and expenses in cases where the determination of a point of law preliminary to the hearing of.the case may dispose 20 ofthesubstance ofthecaseordisposeofamaterialissueandthus save the need for hearingevidence on anyfactual issues. Theimportance ofthisprovisionhasbeenstressedina number of decided cases by.this Court, both in the exercise of original jurisdiction in admiralty actions in considering the matter under 25 the Admiralty Rules ofour Supreme Courtand inparticular Rule 86 which corresponds to Order 27
(1), of the Civil Procedure Rules and also in civil appeals (see, inter alia, Michaelides v. Diakou
(1968)1 C.L.R. 392, Paschalisv. Ship *TANIA MARIA»
(1977)1C.L.R.53;OverseasShipping&ForwardingCo.v.Kappa 30 Shipping,Co. ltd. & Others
(1977)1 C.L.R. 248; Michael v. UnitedSea TransportCo. Ltd.
(1981)1C.L.R. 322). Useful reference in this respect may be made to the observations of Josephides, J., in the case of Michaelides v. Diakou (supra)atpage 395,which readsasfollows: 35 «Before concludingourjudgment, wewould liketorefer to theprocedure followed inthiscaseofsettingdownapointof law for hearing at the stage when it was set down for such hearing. In the past we had occasion to refer to the correct procedure to be followed. We did so on more than one 373 SawidesJ. Hambou v. Thoma
(1987)occasion We need only refer to the case of The heirs of the late Theodora Panayi ν The Administratorsof the Estateof the lateStyhanos Mandnotis
(1963)2C LR 167 Thisiswhat we said in thatcase (atpage 170) 'We would like toadd that in cases where an objection is 5 taken m the defence the interested party must apply to the Court to have a particular point of law under Order 27 formulated and set down for heanng before the date of tnal, andheshould notwait untiltheday of tnalwhen alltheparties and their witnesses are before the Court,when considerable 10 costs may be incurred An application underOrder27 should normally be made on thesummons for directions' We dohope thatinfuture thispracticewillbe followed both by counsel and the courts who have to deal with such matters» Itshould be observed, however, and thisview is supported by the dicta in the above cases that the advantage under Order 27 should be taken either on the summons for directions or at the close of the pleadings orvery shortly thereafter (See,also, inthis respect, Everett ν Ribbands [1952] 2Q Β 198 atρ 206) Counsel 20 should notwait till the case is fixed for tnalandshortly before the dateof heanngavail themselves of theprocedureunderOrder 27 and thussecure an adjournment of the heanng of thecase which otherwise might not have been granted If this nght is left to be exercised without any judicial controlthen theremay be an abuse 25 ofitandpartieswho wishtohave theproceedings protracted,may wait tilltheeve of theheanngtofile anapplication andthus secure an adjournment ofthecase Itisforthisreason thatthematteris left within the discretion of the Judge to decide whether in the circumstances of a particular case it is in the interest of justice to 30 grant such application and have the points of law' set down for heanng pnor tothe hearing of theaction In the present case the learned tnal Judge after hearing arguments by both counsel and beanng in mind the fact thatthe action had already been fixed for heanng, decided that the 35 application for heanngof thepreliminary pointswhich was made at such late stage and whilst the action was about to be heard, three days after the heanng of the application, decided to hear such pointtogether with thesubstance of the case The question which Ihave to decide at this stage is not as to 40 whether the order applied for should be issued, but whether, on the matenal before me a pnma facie case has been made out 374 15 1 C.L.H. Hambou v.Thoma S a w i d e · J. sufficiently tojustify thegrantingofleavetotheapplicanttomove thiscourt toissuean order of prohibition. AsIsaidearlier,thegrantingofleavetoissueaprerogativeorder isa matter of discretion of this Court. Such discretion, however, 5 should be sparingly exercised and bearing in mind always the principle that aprima facie caseshould be'made outjustifying the granting ofsuch leave. Inthe circumstances ofthepresentcase Ifind thataprima facie case justifying the granting of the order applied for has not been 10 made out, that the Judge rightly exercised his discretion and, therefore, the grantingof leave toissuean orderofprohibitionis not justified. Itshould be noted thatthe applicantisnotdeprived ofhis right toarguethequestion ofthejurisdiction oftheCourtatthehearing 15 of the action at which counsel should have the opportunity of advancing hisarguments. Intheresulttheapplicationisherebydismissedwithnoorderfor costs. Applicationdismissed. /Vborderastocosts. 20 375