(1987)1987 May 4 [PIKIS.J ] INTHEMATTEROFART!CLE155{4}OFTHECONSTITUT10NAND SECTION3 OFTHECOURTSOFJUSTICE(MISCELLANEOUS PR0VISI0NS)LAW0F1964 AND INTHEMATTEROFANAPPLICATIONBYCOSTASXENOPHONTOS OFNICOSIA,FORLEAVETOAPPLYFORANORDEROF CERTIORARI AND INTHEMATTEROFTHEJUDGMENT/OR/LEAVEDATED22.4.86 OFTHERENTCONTROLCOURTOFNICOSIAOFHISHONOUR JUDGEMR.A.AGROTISINAPPLICATIONNo.ED208/84 KH.PAPAS1AN LTD., Applicant, v. COSTAS XENOPHONTOS, Respondent. (ApplicationNo.66/87). JudgmentsandOrders—Evictionorder—Serviceofanendorsedcopythereof— Anactpreliminarytotheissue ofawntofpossession and, therefore, prima facie, itsnatureisJudicial—It followsthatitisreviewablebycertiorari. JudgmentsandOrders—Evictionorder—Serviceofendorsedcopyon18.3.87— Terms of endorsement requiring tenant to vacate premises by31.1.87 — 5 Allegationofriskfromcontemptproceedings—Primafacietenantentitledto relief—Leavetoapplyforanorderofcertiorantoquashtheordergranted— — TheCivil Procedure Rules, Order 42A,r. 1 — Contemplates terms of endorsementtorefertoanactrequiredtobedonepresentlyoratafuturedate. Prerogativeorders—Certiorari—Leavetoapplyfor—Principlesapplicable— Existenceofalternativeremedy—No bartorelief, butreliefmayberefused 376 ι 10 1 C.L R. Papasian Ltd. v. Xenophontos as a matter ofdiscretion —Discretion should best be e\eicised nhen both partiesan? heard 5 The RentControlCourtgrantedtheapplication ofthelandlordandordered the tenant that isthe applicant in thiscase tovacate the landlord s shopThe orderwas<;uspendedunti]the3l 187 Anendorsedcopyofthesaidorderwas servedontheapplicantonthel9 3 87 10 Asaresulttheapplicant filedthisapplicationforleavetoapply foranorderof certioran quashing the aforesaid order on the ground that it is defective onits face inthat in accordance with the terms of the indorsement the applicantis required to vacate the premises by 31 187 ι e 45 or more days pnor to the service Applicant s counsel argued that if the order remains in force the applicant whateverhemightdo runsjhensk ofcontemptproceedings against him 15 The endorsed order is also impugned on the ground that afterthe cessation of thestatutorytenancy inrespectoftheshop thereemergeda new tenancy by reason of the acceptance of rent Held grantingleavetoapplyforanorderofcertioran 20 25 30 {\)\nChnstofi and Others ν lacovidou
(1985)1 CL R 692 itwas heldthat proceedingsfortheissueofawntofpossessionare ofaJudicialcharacterandas such amenable to review by certioran By necessary implication Judicial acts preliminaiy tothe issueofsuchawnt likewise qualify asJudicial Service ofan endorsed copy ofJudgment orOrder isaprerequisite fortheissueofawnt of possession andfortheinvocation ofthecoercivepowersoftheCourt infaceof disobedience(TheCivilProcedureRules Order42A r landOrder43A r 1)It follows that pnma facie the validity of the Order and itsendorsement are amenable toreviewbyway ofcertioran
(2)Order42A r icontemplatesthetermsofendorsementoftheordertorefer toanactrequiredtobedonepresentlyoratafuturedate InIbenan TrustLtd ν FounderTrust andInvestment Co Ltd [1922]Κ Β 87Luxmore J heldthatan order served after the time limited forthe doingof the actspecified therein is unenforceable
(3)Inthiscaseapplicant complainsthatunlessthematterisputnghthemight find himself exposed toa charge of contempt for failure todo things pnor to serviceuponhimoftheorder Heis pnmafacie entitledtorelief 35
(4)The existenceofanalternative remedy namely anapplicationtotheRent Control Court to set aside its order isnot abar to entertaining amotionof certioran, butit is relevant tothe exercise ofthe Court s discretion Such discretion^ however should best be exercised when both sides are heard
(5)The alleged emergence ofanew tenancy has nothing to do with the 377 Papnslan Ltd, v. Xcunpliuntus
(1987)-u'.:d:iyα:£.«i;'.np_yncdorder Leavegranted Casesreferredto 77ieBunsa/owsvMasonI1954)lAUER 1402, ReChnsro/i
(1985)1C LR 692. $ ChnstofiandOthersv lacovidou
(1986)1C LR 236, HeathenngtonSecuntyCo [1924]AC
- IberianTrustsLtd ν Founders TrustandInvestment Co Ltd [1922) KB
- Cordonv Gordon|1946]1AUER 247 Beeston Shipping Ltd ν Babanaft [1985] 1All ΕR 923 10 W)//)amsi/Faucefr[1985]lAllER 787, ReKafcosf 1985)1 CL R 250 Vpplication. Application forleavetoapplyforanorderofcertioraritobringup 15 indquash an orderof theRentControl Courtof Nicosia ordering ipphcanttovacateashopatLedraStreet,Nicosia. Ph.Clendes,fortheapplicant. Cur.adv.vult. PIKISJ. read the following judgment. This is an application of 20 ZostasXenophontosfor leavetoapply for certiorariwith aviewto mngingupforthepurposeofquashinganOrderoftheNicosiaRent Control Court, ordering him to vacate a shop at Ledra Street, •licosia,attachedtotheapplicationasexhibitA.Anendorsedcopy :>ftheorderwas served onhimon1QthMarch,1987 Hecomplains tisdefective onitsfacebecause,inaccordancewiththetermsofthe 25 endorsementapplicant isrequired tovacate thepremises by 31 st January,1987, i.e.,45ormoredayspriortotheservice. Iftheorder remainsinforceandirrespective ofwhateverhemightdothereafter, hewillbeliableforbreach ofitsprovisions.aseriousmatterin viewof 30 :he grave consequences that may befall him in contempt proceedings 378 1 C.L.R. Papaslan Ltd. v. Xenophontos Pikis J. TheOrdertodeliver posbession was issued ontheapplicationof theowner of theproperty for theenforcement ofajudgment ofthe Nicosia Rent Control Court whereby theapplicant hadbeen ordered to vacate thepremises by 31st March 1987 More 5 precisely an Order for delivery of possession was made suspended in the exercise of the discretionary powers ofthe trial Court up to 31st January 1987 Seemingly the owner took no steps tohave anendorsed copy of the Order served upon the applicantpriorto31st March 1987 inanticipationof theoutcome 10 ofthe appeal ofCostas Xenophontos The Order was served on theapplicantsoon after thedismissal of theappeal on 19thMarch, 1987 inordertopave theway incase ofdisobedience for theissue and enforcement of a writ of possession The appeal was dismissed on 16 3 87 15 Theendorsed orderissought tobe quashed onanotherground too,namely, theemergence of anew tenancyagreement after the cessation of thestatutory tenancy by theacceptanceof rent * This ground has nothing to dowith thevalidity of the impugned order as Ipointed out to counsel m the course ofthe argument ofthe 20 case Hisremedy, ifany on thiscount lay elsewhere Counsel for theapplicantagreed with thisappreciationof thematterandmade no further submission insupportof thataspect of the application InmyJudgment thatis notaground uponwhich thevalidity ofthe Order can be challenged by way of certiorari 25 InreManohs Christoft** I doubtedwhetherproceedings forthe issueof a wntof possession are of ajudicial characterand onthat account refused among other reasons amotionfor certioran The view was espoused*** that proceedings associated with theview of a wnt of possession are ofa ministenal and not ofa judicial 30 character and assuch mamenable to judicial review byway of certioran The decision wasreversed on appeal -Christoftand Othersν lacovidou ****Itwas held thatproceedings for theissue of a wnt of possession areofa judicial character and assuch amenable toreviewby way of certioran Bynecessary implication, 35 judicial actspreliminary totheissueof awntof possession likewise qualify asjudicial andare at least pnma facie amenable toreview by way of certioran underArticle 155 4of the Constitution * TheBungalowsLtd ν Mason [1954/1AIIER 1402(CA) "
(1985)1CLR 692 * " HeathenngtonSecuntyCo I1924IA C 988 ***·
(1986)1CLR 236 379 pikis J . PapasianLtd.v. Xenophontos
(1987)Service of an endorsed copy of Judgment or Order is in accoidance with Order42A r 1aprerequisite for theissueofawnt of possession intheeventofrefusal tocomplywith thetermsofthe Order This is made clear from the provisions of Ord 43A r1
(1), particularly therequirementthatthewntshouldbeprecededbyan 5 affidavit in Form 39C requmng verification of the fact that an endorsed Order was served upon the party towhom theOrder is addressed and notobeyed Moreover,Ord 42Ar 1makes service of an endorsed copy of aJudgmentorOrderaprerequisite for the invocation of the coercive powers of the Court in face of 10 disobedience Hence, I rule that the validity of the Order and endorsement thereto,a prerequisite for thevalidissue of awntof possession andservice thereof, arepnmafacie amenabletoreview byway ofcertioran Order 42A r 1 contemplates the terms of endorsement of the 15 Ordertorefer toan actrequired tobe donepresently orata future date InIberian TrustLtd, ν Founders Trustand Investment Co Ltd, *Luxmore,J heldthatanorderserved afterthetimelimitedfor the doing of the act specified therein is unenforceable The reasoning behind this judgment is that the very object of an 20 endorsement istorequire theperson towhom itisaddressed todo theactspecified within thetimelimitedtherein,andremindhimof theconsequences thatwillbefall himintheevent of disobedience It is not in the power of the addressee to do or rectify a state of affairs pre-existmg service of the order In Halsbury's Laws of 25 England,** the appreciation of the law on the subject of retrospectivity of an endorsementdepicted inIberiaisadopted as a valid legal statement applicable in every situation where the object of the endorsement is to require the addressee to do something 30 Counsel also drew attention to Order 34 r5 whereby it is directed that in every judgment or order requinng any person to do an act, the time at which the act should be done should be stated Tomyunderstandingthisrulprefers totheJudgmentof the 'Courtthatdid, inpointoffact,specify thetimeatwhich possession 35 should be delivered, namely on or before 31st January, 1987 In aid of thesubmission thattheendorsementof theOrderis invalid, ' * [19221KB 87 " 4lhed Vol 9 para 63 380 1 C.'-R. Papasian L t d . v. X e n o p h o n t o s Pittis J . ana that the invalidity renders the Ordei in its entirety detective counsel drew attention to the case of Gordon ν Cordon * decidingthat no committal forcontemptshould be recorded unless the rules relevant to disobedience of an order have been complied 5 with Indeed, where the liberty of the subject is at risk as in the case of disobedience of an order of the Court there must be both certanity as to the details of disobedience** and strict adherence to pi'»redure requirements relevant to disobedience of an Or3er of the Court -Beeston Shipping Ltd ν Babanaft * * * l n t h e light of 10 the above, applicant would prima facie be in a position to put forward an effective defence to a charge of contempt founded or. disobedience of the Order here under review Thdt is not of course, the issue immediately posing for consideration though it serves to stress the need for strict compliance with proceduial 15 requirements respecting the content and service of the Orciei Therefore, it appears to me that prima facie the standard to be obtained at this stage****, applicant made out a case for leave and for that reason leave may be granted to apply for the remedy 20 25 30 35 I d o not overlook that applicant had been ordered to vacate the premises long ago and failed to do so noi do I wish to reward him for that conduct But that does not relieve me of the duty to review in the light of the above, the validity of the Order served on the respondent, particularly the endorsement Applicant complains that unless the matter is put right he might find himself exposed to a charge of contempt for failure to d o things pnor to service u p o n him of the Order and he wants to prevent that by bringing up the Order with aview toquashing He is prima facie entitledto relief Another aspect of the case that troubled me is the amenity that applicant hadtoapply beforetheCourt thatissued theOrder tosetit aside and failure to d o so O n the other hand, the existence of an alternative remedy is not of itself a bamer to entertaining a motion for certioran Certainly the availability of an alternative remedy is relevant tothe exercise of the discretion of the Court in making an oiderofcertioran However, Iinclinet otheview thatthe discretion of theCourt in thisconnectionshould bestbe exercised when both asides are heard and the facts in their entirety appear before the Court •11946)1 All Ε R 247 "Willwmv Fawcett [1985)1 Ail Ε R 787 ·" [1985) 1 All Ε R 923 (Court of Appeal) " · · In π Kakos,
(1985)1 C L R 250 381 Pikis .1 Papaslan Ltd.v. Xenophontos
(1987)In the light of the above, leave is hereby granted to apply for certioran Theapplicationmustbefiledwithin4daysandservedas expeditiously as possible Respondents will be at liberty to file writtenoppositiontotheapplicationwithin7days Theapplication willcomebeforetheCourtforfurtherdirectionson23rdMay,1987 5 In the meantime, Idirect that the enforcement of the Order here under review and steps in execution associated therewith be suspendedpendingthedetermination oftheapplicationtobefiled orfurther order Applicationgranted 382 10