clr/1987/1987_1_413.pdf

(1)As at present advised no order of mandamus would lie against a Judge, who failed to deliver a ruling for a considerable time 15

(2)Assumingthatitties,theremedyisdiscretionaryandthediscretioninthis casewould not have been exercisedin favour of theapplicants,because of theexistenceof analternative remedy* Apphcabon dismissed Casesreferredto In thematter ofAndreasAnnas

(1980)1 C L . R 466, 20 /ntf)emeffero/Mafflbdes{1980)lCLR 472, In thematter ofSawas Athanasstou

(1969)1C L R. 439 *Regulation3oftheRegulationsissuedbytheSupremeCourton101286andpublishedm Supplement2oftheOrBaafGaierteNo 2193 413 Inre Zographou

(1987)Application. Application for leave to move the Court to issue an order of mandamus directing Mr. G. Michaelides, a District Judge of the Nicosia District Court to deliver a ruling in an Adoption Application which he reserved asfrom 18th December, 1985and to fix the said application for further hearing. 5 Chr. Christofides forL Papaphilippou, forthe applicant. Cur. adv. vult. KOURRISJ. read thefollowingjudgment.Thisisan application for leave to apply for an order of mandamus directing Mr. G. Michaelides, a District Judge of the District Court of Nicosia, to 10 deliver a ruling in an Adoption Application which he reserved as from 18th December, 1985 and to fix the said application for further hearing. The facts of this application as they appear from the affidavit swom in support of theapplication, briefly are asfollows:-On the 15 15th September, 1984 the affiant and her husband filed an application in the District Court of Nicosia under No. 9/79 to set asidean adoption whichwasopposed bythenaturalmotherofthe adopted child. During the hearing of the application the learned trial Judge 20 raised the issue whether he had jurisdiction to trythe application or whether the Supreme Court had jurisdiction to hear it, whereupon he called upon counsel appearing for the parties to argue this issue. Counsel advanced arguments on this issue and thelearnedJudgereserved therulingofthesaidissueasfrom 18th 25 December, 1985 and failed to deliver it till the filing of this application. Counsel for the applicant argued the case before me and cited insupport of hisargument certain passages from Halsbury's Laws of England, 3rd Edn., Vol. 11 and the Cyprus cases of, In the 30 matter ofAndreas Azinas

(1980)1C.L.R. 466and Inthematterof Majikides

(1980)1C.L.R. 472. He also referred the Court to the case of Sawas Athanassiou

(1969)1 C.L.R. 439 which was an application forleavetoapplyforprohibitionandcitedtotheCourt to the passage at p.445 where the Court observed that itisin the 35 public interest that mere should be finality in litigation and that delay in litigation isundesirable. He did not, however, cite any cases where the Supreme Court of Cyprus or the High Court of 414 1C.L.R. InreZoeraphoa KoanleJ. Justice inEngland wasaskedtoissueamandamusorder directing a Judge of an inferior Court to deliver a ruling which he had reserved for consideration. In Halsbury's Laws of England, 3rd Edn., Vol. 11, parapraph 5 159isstated:- 10 15 «Theorderofmandamus (b)isanorder ofamost extensive remedial nature, and is,in form, a command issuingfrom the HighCourtofJustice,directedtoanyperson,corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to hisor their office and isin the nature of a public duty. Itspurpose isto supply defects ofjustice;and accordingly itwillissue,tothe end that justice maybe done,inallcaseswherethereisaspecific legal rightand no specific legal remedy for enforcing that right(c); and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual (d).» The other twocasesreferred tobycounsel related toordersof certiorari and prohibition and they do not help me in the present 20 application. As Iam at present advised, no order for mandamus would lie against a Judge who failed to deliver a ruling for a considerable time. Further, the grant of an order of mandamus is, in general rule,amatterforthediscretionoftheCourtanditisnotgrantedas 25 ofrightand itisnot issued asa matterof course. Assumingthatan orderof mandamusliesagainstaJudge,asin thepresentcircumstances,then, intheexerciseofmydiscretion,I would not have granted leave to file an order for mandamus because there isa specific remedy for enforcing the right of the 3 0 applicantinordertoobligethelearnedJudgetodeliverhisruling; and these are the regulations issued by the Supreme Court of Cyprus on the 10th December, 1986 and published in Supplement No.2oftheOfficial GazetteoftheRepublicNo.2193 atp.25.Regulation3providesthateveryjudgmentisdelivered as 3 5 soon aspossible after the conclusion oftheproceedings and itis not reserved for a period longer than six months. And when a Courtfailstocomplywiththis,everyinterested litigantmay,byan application totheSupreme Court, askforanyremedy mentioned inparagraph 5 of this regulation. 415 KourrUJ. lnreZographou

(1987)Forthese reasons Iam oftheopinion thattheapplicantfailed to make aprima facie arguable casesufficiently tojustifythe granting of leave tohim to move thisCourt indue coursetoissuean order of mandamus. Before concluding Iwould like to express my anxiety for the 5 delay of the delivery of therulingintheAdoption Application and toreiterate what the Court said in the case of Sawas Athanassiou (supra) that delay in litigation is undesirable and that it is in the public interest that there should be finality inlitigation and Ihope that the learned Judge should proceed and deliver his ruling 10 forthwith and fixtheAdoption Application for further hearing. Inthe circumstances the application isdismissed. Application dismissed. 416