(1988)1988March 29 (KOURRIS,J.) INTHEMATTEROFARTICLE155.4OFTHE CONSTITUTION ANDS.9 OFTHECOURTSOFJUSTICE MISCELLANEOUSPROVISIONSLAW, 1964 AND INTHEMATTER OFANAPPLICATIONBY -O FILELEFTHEROSLTD»FORANORDER OF CERTIORARI. (Application No.60/88). Prerogative orders —Certiorari —Leave to apply for— Principles applicable —Applicant should make out aprimafaciecase. Companies —Injunction upon ex parte application restraining a company from holding a meeting, which had been convened and wasdue tobeheld on thesamedate, when theinjunctionwasissued 5 (19.3.1988), untildetermination ofthe application,based,interalia, on Rules3 and 8 of the Companies Rulesandfixedforhearingon 30.3.88 —Leave to apply for an order of certiorari to quash the injunction granted. The facts of this case sufficiently appear from theJudgment ofthe Court. 10 Leave toapply foran Orderof certiorarigranted. Casesreferred to: A. C. v. Christou, 1962 C.L.R. 129; 15 Re Papadopoullos
(1968)1C.L.R. 66; Re Panaretou
(1972)1C.L.R. 165; ReKakos
(1985)1C.L.R.
- Application. Application for leave to apply for an order of certiorari for the purpose ofbringing up and quashing the orderofthe District Court of Nicosia in Appl. No.82/88 dated 19th March, 1988 and for an order staying the proceedings in the above application. 160 20 1C.L.R. Inre Phflcleftberoe L.Papaphilippou, for the applicant. Cur. adv. vult. KOURRISJ. read the following decision.Thisisan application for leave to apply for an Order of Certiorari for the purpose of 5 quashing the order of a Judge of the District Court of Nicosia in Application No. 82/88 and also for an Order staying the proceedingsinApplication 82/
- The facts of the case asthey appear from the affidavit sworn in support of the application by Constantinos HjiNicolaou, the 10 Secretary of «Fileleftheros Ltd.»areasfollows:On 19th March, 1988,a Judge of the District Court of Nicosia, on an ex parte application filed by a certain Efthymios HjiEfthymiou, and Gavriella Stavridou, who are Directors of «O Fileleftheros Ltd.» issued an injunction restraining the said 15 company from holding a meeting on the same day, i.e. on 19th March, 1988,untilthedetermination oftheapplication whichwas fixed forhearingon30th March. 1988.Theapplication wasbased on Regulations 3 -8 of the Companies Rules of Part IIof tableA in the First Schedule of the Companies Law, Cap. 113^ on the Regulations contained in the memorandum of «O Fileleftheros Ltd.»and on the inherent powers of the Court. The question which fallsfor determination byme atthisstageis whether there isa prima facie arguable case made out sufficiently tojustify the granting of leave to the applicant to move this Court 25 indue coursetoissuean OrderofCertiorari.Itisnotnecessary for me to go into the matter thoroughly, but it is sufficient if on the basis of the applicant's statement and the affidavit insupport, the Court issatisfied that such Jeave should be granted. (See A.G v. PanayiotisChristou,1962C.L.R. 129atpp. 133and 134;exparte 30 Costas Papadopoulos,
(1986)1 C.L.R. 66; in reNina Panaretou
(1972)1C.L.R. 165;inreKakos
(1985)1C.L.R. 250. Counsel for the applicants argued that there is a flagrant illegality on the proceedings in that the application before the DistrictCourtofNicosiaisnotenvisaged byanylaworruleandthe 35 proceedings are unknown to the law. He said that the ex parte application isnotbased on any application bysummons orwritof summons and that the said application is not available for the commencement of any action in this country and particularly under the Company Law and rules. He argued that under the 40 Companies Law (Subsidiary Legislation of Cyprus) Vol II,p.279, Rules5and6provideforonlytwotypesofapplication, namelyby 161 Kourris J. In re Pelekano· &Other»
(1988)petition and by summons; and these Rules further state when a petition istobe usedand inwhat circumstances an application by summons is to be used and that the ex parte application is unknown totheCompanies Rules. Likewise, hesaid that sections 141 -152 do not provide for aninjunction againsta Directorwho 5 isinbreach. Lastly, he contended thatthere hasbeena breachof the rulesofnaturaljusticeinthattheinjunction grantedbytheTrial Judge was permanent and he issued itwithout having heard the other parties, i.e.the applicants ofthe application in hand. I have considered the argument of learned counsel for the applicant and atthisstage, itwould appear that the applicant has a prima facie arguable case thatthere hasbeen an errorof lawon the face of the proceedings, and in the circumstances, I grant leave to the applicant to file an application for an Order of Certiorari within 15 days from today and all proceedings before the DistrictCourt inApplication No.82/88 to be stayed. 10 15 Application granted. 162