(1988)1988 June 3 (KOURRIS J ) INTHE MATTER OFARTICLE 155 4 OFTHECONSTITUTION ANDS 9 OFTHE COURTSOFJUSTICE {MISCELLANEOUS PROVISIONS) LAW, 1964, and INTHEMATTER OFANAPPLICATION BY «FILELEFTHEROSLTD » FOR AN ORDEROF CERTIORARI (ApplicationNo 64/88) Civil procedure—Ex parte application—Whether civilproceedings can be initiatedthereby—Question determined in the negative Companies—Ex parteapplication for an orderrestrainingcompany from holding ameeting—Such proceedings cannot be initiatedbysuch an application—In issuing the injunction the Court acted without junsdiction 5 Natural Justice—Right to be heard—Issuing injunction upon ex parte application, but making same returnable on a day certain—It cannot be said that there has been a breach of the said rule of naturaljustice Upon ex parte application filed by two of the Directors of «O Fileleftheros Ltd »a Judge of the DistnctCourt of Nicosia issued an injunction restraining the said company from holding a meeting on thesame day, ιe on 19th March, 1988, untilthedeterminationof the application which was fixed for heanng on30th March, 1988 10 15 Having obtained leave* theapplicantsfiledthepresent application for certioran quashing the said injunction Held, granting the application
(1)The ex parte application is not available for the commencement of proceedings As it was held in HadjiHambis ν Attorney-General andOthers
(1986)1C LR 386 -If 20 the matter is not incidental to pending proceedings already before theCourt,thenthe cause cannotbe broughtbefore theCourt,inany other manner than that which is prescnbed by the Rules, that is, either by a writ or in exceptional cases by originating summons *
(1988)1CLR 160 344 1C.L.R. InrePhUeleftheros Ltd. where provision tothateffect existsintheLaw orthe Regulations.» The ex parte application was not incidental in this case to any pending proceedings. 5
(2)In the circumstances the injunction will be quashed for the additionalreason thattheJudge actedwithoutjurisdiction.
(3)Astheorderwas madereturnableonadaycertain, itcannotbe saidthattherehadbeenabreachof therulesof NaturalJustice. Order for certiorari to issue Costsagainstrespondents. 10 Casesreferredto: HadjiHambisv.Attorney-GeneralandOthers(1986}1 C.L.R.
- Application. Application for an order of certiorari to remove intothis Court and quash the order made by the DistrictCourtof Nicosia on the 15 19th March, 1988 inApplication No. 82/
- L. Papaphilippou,for the applicant. M.Christofides, for the respondent. Cur. adv. vult KOURRiSJ. readthefollowingjudgment.Thisisanapplication 20 for an order of certiorari to remov,e into this Courtand quash the order made by theDistrictCourtof Nicosiaon 19th March, 1988, inApplication No. 82/
- On the29th March, 1988, leavewas granted totheapplicantto move thisCourtfor anorderofcertiorariand,inpursuanceof such 25 leave,applicantfiled the present application. The facts of the present case, as appearing in theaffidavit filed in support of the application for leave to apply for an order of certiorari are thaton the 19th March, 1988, aJudge of theDistrict Court of Nicosia, on an ex parte application filed by a certain 30 Efthymios Hadjiefthymiou and Gavriella Stavridou, who are directors of «O Fileleftheros Ltd».,issued an injunction restraining thesaid companyfrom holdingameeting onthesame day, i.e.on 19th March,1988, untilthedeterminationof theapplication which was fixed for hearing on30th March,
- 35 By the said application, the applicants also prayed for *n order ordering the company of «O Fileleftheros Ltd.» and i&Managing 345 Ά Koutris J. InrePhlleleftheros Ltd.
(1988)Director, a certain Christoforos Pattichis, to make evailable to them for inspection all books of account and returns with respect to the business dealtwith inthebooks of account. Thesaid application wasbased onRegs.3-8ofthe Companies Rules, on PartIIofTableAintheFirstScheduleoftheCompanies 5 Law,Cap. 113,ontheregulations contained inthe memorandum of«OFileleftheros Ltd».,andontheinherentpowersoftheCourt. In their affidavit in support of the said application, Efthymios Hjiefthymiou and Gavriella Stavridou, stated that they asked for the inspection of thebooks ofaccount and returnswith respect to 10 the business dealt with in the books of account of the company, buttheyreceived noreplyandasthemeetingofthecompany was to take place on 29th March, 1988, they applied by an ex parte application tothe District Courtof Nicosia. The grounds on which thepresent application isbased are:- 15 (a)the said order was wrong in law and there isan error of law apparent on the face of the record; (b)the DistrictCourt ofNicosia didnothavejurisdiction toissue the said order; and (c)The said order was made in breach of the Rules of Natural 20 Justice. CounselfortheapplicantsarguedthattheJudgewhoissuedthe Orderrestrainingthesaidcompany from holdingameetingon the 19th March, 1988, was wrong in law, and there isan error of law apparent on the face of the record in that the application before 25 the DistrictCourt of Nicosiawasnotenvisaged byanylawor rule and theproceedingsareunknown tolaw.Hesaidthattheexparte application is not based on any application by originating summons or writ of summons and that the said application is not available for commencement of any action, in this country, 30 particularly under the Companies Law and rules thereof. He argued that under the Companies Law «Subsidiary Legislationof Cyprus»Vol. II,p. 279, Rules5 &6provide for onlytwo typesof applications, namely by petition, and by summons; and these Rules further state when a petition is to be used and in what 35 circumstances an application by summons isto be used and that the ex parte application is unknown to the Company Rules. Likewise, he said that sections 141 - 152 do not provide for an 346 1 C.L.R. Inre PhUeleftheros Ltd. Kourrls J. injunction against a Director who is in breach. He, further. contended thatthe DistrictCourt acted forwantofjurisdiction and he relied on the case of Panikkos HadjiHambis v. AttorneyGeneral of the Republic and Others,
(1986)1C.L.R. 386. 5 Counsel for the respondents in effect, argued that due to the urgencyofthemattertherespondentswereentitledtoapplytothe Court byan exparte application. InthecaseofHadjiHambis v. Attorney-Genera! ofthe Republic and Others(supra),atpp.390-391,theCourtsaidthe following: 10 15 «If the matter is not incidental to pending proceedings already before the Court, then the cause cannot be brought before the Court in any other manner than that which is prescribed by the Rules, that is, either by a writ or in exceptional casesbyoriginatingsummonswhere provision to that effect existsinthe Law orthe Regulations.» Also, at the same page itisstated: «Incontrast tothis, under Order 48,an application made is incidental to the cause in respect of which proceedings are pending before the Court.» 20 I have considered the matter and I hold that the ex parte application beforetheDistrictCourtofNicosia,isnotenvisagedby any laworrulesand that the proceedings are unknown tothe law Thatexparteapplication«isnotincidentaltopending proceedings alreadybefore theCourt»,andthesaidapplication isnot available 25 forthecommencement ofanyaction.Inthese circumstances, Iam satisfied that the Judge of the DistrictCourt waswrong inlaw and there isan error of law apparent on the face of the record. I am also satisfied that in the circumstances under which the Judge of the District Court dealt with the ex parte application, it 30 acted withoutjunsdiction. (See Halsbury' sLawsof England, 3rd edn.Vol.II,p. 142paragraph 268). The third ground on which thisapplication isbased isthat there hasbeen abreach of the rules ofnaturaljustice.Ido notthink that there has been a breach of the rules of naturaljustice because the 35 Judge of the District Court when he granted the ex parte application and issued an injunction on 19.3.1988.the injunction was returnable on 30.3.1988 when the applicants in this application who were respondents in Application No. 60/88 347 KourrisJ. InrePhlleleftheros Ltd.
(1988)before the District Court could make their opposition and they could be heard. Therefore, I do not think that there has been a breach of the rules of naturaljustice. For allthese reasons, Idirectthatthe proceedings reviewed be quashed. Order of certiorari to issue. Respondents to pay costs. Coststo be assessed by the Registrar. 5 Application granted with costs. 348