(1988)1988March1 (DEMETRIADES.J.) INTHE MATTER OFANAPPLICATIONBY 1.CHRISTOFOROS PELEKANOS,2.GEORGHIOSPELEKANOS,3.C &APELEKANOS ASSOCIATES LTD.,AND4. CHRISTOFOROS PELEKANOS LTD., FOR LEAVETOAPPLY FORANORDER OF CERTIORARI, AND INTHE MATTER OFANINTERIMORDERGRANTEDBYTHE DISTRICTCOURTOFNICOSIA, INACTION NO.377/88, ON 18.1.88. (ApplicationNo. 27/88). Prerogative orders— Certiorari—Leave to apply for— Principles applicable —Applicant should make out aprima facie case. The facts of this case appear sufficiently in the judgment of the Court. Leave toapply for an order ofcertiorarigranted. 5 Application. Application for leave to apply for an order of certiorari for the purpose of quashing an interim order given on the 18th January, 1988 on an ex-parte application in Action No.377/88 of the 10 DistrictCourt ofNicosiaand, further, foran orderthat compliance with the interim order be stayed until the hearing of this application or until further order. K.Michaelides withM. Georghiou, for the applicants. Cur.adv. vult. 15 DEMETRIADES J. read the following ruling. This is an application by which the applicants(a)Seek leaveto apply for anorder ofcertiorariforthe purpose of quashingthe interim order given onthe 18thJanuary, 1988,on an ex-parte application filed in Action No. 377/88 of the District 20 Court of Nicosia, and 130 k . T t . g j j . f .c 1CXJL Inre Pelekanos &Others Denwtriades Λ. (
- b)apply thatfurther compliance with the interim order and all proceedings inrelationtothesaidorderbestayed untilthehearing of thisapplication or further order. Theapplicants inthepresent proceedings are thedefendants in 5 theactionbefore theDistrictCourtof Nicosia,which was brought against them by the plaintiff in that action, in his capacity, as he alleges, as a director and shareholder in the company which is defendant No. 3 intheaction. The plaintiff in Action No. 377/88 of the District Court of 10 Nicosia, inbrief,claims for(A) Injunctions restraining defendants 1, 2 and 4 personally, their servants and agents, from (
- i)using and/or exploiting machinery, tools, materials and labourers belonging todefendant No.3 fortheconstructionof 15 two blocks of flats atNicosia, (
- ii)alteringordestroying thebooks, receipts,contracts,papersand correspondence of defendant No. 3 and/or of falsifying the entries totheirbooks and files. 20 25 30 (B) An order directing the defendants to give on oath detailed accounts and explanations relating to machinery, materials and labour which were used from theproperty of defendant No.3for theconstructionof thetwoblocks offlatsinthename of «PELEKANOS COURT NO 10» and «PELEKANOS COURT NO 11» situated at Nicosia, in the name and/or on accountof defendant No. 4. (C)Decalrationby theCourtthattheblocks of flatswhich are being constructed under the characteristics or names of «PELEKANOS COURTNO 10» and «PELEKANOSCOURT NO 11» in Nicosia in the name of defendant No. 4 and/orall profits which willbe made out of them, belong and form part of theproperty of defendant No. 3. (D)Damages as a result of breach of duty and/ordishonesty and/ or trust and/orfraud etc. 35 (E) Damagesagainst defendant No.3amountingto£95,820.- plus interestat9% p.a. as from 1.1.1980. (F)Order that defendant No. 1 gives on oath full particulars of all dealings thathe carried out as the agent of the plaintiff. 131 DemetriadesJ. InrePelelumoa&Others
(1988)(G)Judgment against defendant No. 1 for all amounts of money that he had collected and withholdsbyvirtue of the powerof Attorney dated the 7thNovember, 1979,whichwasgiven by the plaintiff to defendant No. 1. The interim order granted by the District Court of Nicosia prohibits the defendants from - 5 (
- a)parting or disposing of the books, receipts, contracts and correspondence of defendant No.3, (
- b)changing or destroying the books, receipts, contracts and correspondence of defendant No.3, 10 (
- c)Using machinery, tools, building materials, labourers and personnel of defendant No.3 for the purpose of erecting the blocks of flats under the name «PELEKANOS COURT NO 10»and «PELEKANOS COURT NO 11» situated at Nicosia and which belong to defendant No. 4. The Court further made an order inthe form of an Anton Piller Order. The grounds upon which the applicants base the relief sought bythem are the following:
(1)Neither ss.6 or 9 of the CivilProcedure Law CAP.6 nor s.32 20 of the Courts of Justice Law, Law 14/60, empowered the District Court of Nicosia tomake the said interim order.
(2)TheCourthad nojurisdictiontopreventthecommission ofacts which are merely criminal; and paras (
- a)and (
- b)of the said order amount in essence toprevention of the commission of 25 criminal acts.
(3)The Courthad nojurisdiction orpower tomakeanorderinthe Anton Piller form as part ofthe said order.
(4)Even ifthe Court hadjurisdiction orpower tomakean orderin theform ofanAnton Pillerorder,thesubjectmatterofthesaid 30 action was not onejustifying, the making of such a draconian and oppressive order which amounted inessence toa search warrant.
(5)Thebooks, documentsandrecordsofacompanymustbe kept at its Registered Office. Consequently the Court had no 35 jurisdiction or power to Order Applicants to consent to five persons, not named in the order, to enter immediately the premises of Applicant 3 for the purposes of removing, J32 1C U R . InrePelekanos &Others Demetriades J. inspecting, photocopying or copying allthe books, receipts, contracts, documents and correspondence ofApplicant3. Noteven theshareholders ofApplicant3 had such rights under the law. 5
(6)TheOrdercomplained ofviolatesthe Constitutionaland other legal rights and privileges of Applicant 3 to preserve the confidentiality of its business, transactions, documents, books, accounts, etc. 10
(7)Para (c)ofthesaidorder made againstallapplicants and in the terms made is contrary to the relevant legal provisions as interpreted byour Courts.
(8)Itisevident from the aforesaid and the whole contents of the saidorderthattheCourtinmakingthesaidordererred and/or was mistaken and/or applied wrongly the relevant legal 15 provisions.
(9)The Court entirely disregarded that Plaintiff in the said action was not in law entitled to claim reliefs (a)to (e)of the general indorsement orthe order applied for and granted. 20
(10)The said Orderwasgranted in excess orabuse of the powers of the Court. Asithasrepeatedly been said,thisCourt ingranting or refusing an application of this nature, hasto exercise a discretion and that what ithastodecide atthisstage isnot whether the order applied forshouldbe issued butwhether on the materialbefore it,thereis 25 a prima facie case made out sufficiently to justify the granting of leave to the applicant to move the Court to issue the order of certiorari. Inthe lightof the contents of theaffidavit filed insupport of this application, and having heard lengthy arguments by counsel for 30 the applicants, Iam satisfied that a prima facie arguable case has been made out forgranting the application. I,therefore, makethe following order: 35
(1)The applicants are granted leave to apply for an order of certiorari within ten days from today. Any opposition to it must be made and filed within twenty-one days thereafter.
(2)Allproceedingsrelatedtotheinterim ordergranted onthe 18th January, 1988, in Civil Action No. 377/88, of the District Court of Nicosia, by way of execution or otherwise, are •hereby stayed for ten daysasfrom todayand ifthe applicants 133 Demetrlades J. InrePelekanos & Others
(1988)apply within the period hereinabove provided, or such extended time as the Court may order, for an order of certiorari, then the stayshall continue tobe inoperation until furthei order of the Court.
(3)Copy of thisorder to be served on the Registrar ofthe District Court. 5 Order accordingly, 134