1 C.L.R. ' ' 1988June 15 (A.LOIZOU.P.) INTHE MATTEROFANAPPLICATION BYYIANNAKISP.ELLINAS FORLEAVETOAPPLYFORANORDER OFCERTIORARI AND/OR PROHIBITION. and INTHEMATTEROFANORDEROFTHE DISTRICT.COURT OF LIMASSOLDATED5.2.88INCRIMINALCASENO. 22446/87. (Application No. 100/88). Prerogative orders—Certiorari/Prohibition —Leave to apply for— Applicant should make out aprima faciearguable case. Prerogative orders— Certiorari—Leave to apply for—Delay— // inexcusable, aground forrefusing review. On 5.2.88 the applicant was committed to trial before the Assize Court of Limassol for variousoffences. The Information wasfiled by theAttorney-General,butwhen, on25.5.88,theapplicantwastobe arraigned before the Assize Court he raised certain preliminary objections.The Assize Court dismissed them.The applicant applied for a question of lawtobe reserved for the opinion of the Supreme Court. This application was, also, dismissed. The applicant filed application 99/88 for leave to apply for orders of certiorari, mandamus and prohibition as against the aforesaid rulings of the AssizeCourt.He,also,filedthepresentapplicationforleavetoapply for an order of certiorari quashing his committal to trial and for an order of prohibition prohibiting the Assize Court from trying him in respect ofthe Information filed asa resultofthe committal order. 20 In support of the present application the applicant alleged that there isan errorof lawapparent on the face of the record, i.e. the statement ofthewitnessesdidnot disclose the offences for which he wascommitted totrialortheydidnotdiscloseevidencejustifying his committal. Held, dismissing the application:
(1)The question iswhether the applicant succeeded in making outa prima facie arguable case. 25
(2)The statements of the witnesses disclosed sufficient evidence forapplicant' scommittal. 371 Inre EUinas
(1988)
(3)In any event, certiorari isa discretionary remedy. Delay in applying, if inexcusable, isa valid reason for refusing review.The delayinthiscaseisclearlyinexcusable Applicationdismissed. Casesreferredto: 5 ReNinaPanaretou
(1972)1 C.L.R. 165: ReKakos
(1985)1C.L.R.250; ReAeroporosandOthers
(1988)1 C.L.R.
- Application, Application for leave to apply for an order of certiorari to 10 remove into the Supreme Court and quash the committal of the applicant for trialbytheAssizeCourtofLimassoland foran order of prohibition prohibiting the Assize Court of Limassol from proceeding to arraign and/or try the applicant in Criminal Case No.22466/87 on the basisofthe above committal. 15 G. Cacoyannis with P.Mouaimis and M. Koukkidou (Miss), for the applicant. Cur. adv. vult A.LOIZOU P. read the following judgment. The applicant was on the 5th February 1988 committed by the District Court of 20 Limassol (Stavrinides D.J.)fortrialbytheLimassolAssizeCourtin Criminal Case No.22446/87 fortwenty-eight offences relating to stealing allegedly committed on various dates during the period between February 1981 and July
- The Attorney-General of the Republic filed an information inthe 25 Assize Court of Limassol charging the applicant with thirty-one offences allegedly committed between the 12th February, 1982 and 28thJuly 1983.When onthe25th May 1988hewasabout to be arraigned before the Limassol Assize Court, but prior to it, the applicantraisedcertainpreliminaryobjectionsonwhichtheAssize 30 Court gave its ruling on the 1st June
- Following the said rulingapplicant's counsel| on the 3rd oune 1988 applied to the Assize Court of Limassol for four Questions of Lawarising outof thesaidrulingtobereserved fortheopinionoftheSupreme Court pursuant tosection 148oftheCriminalProcedure Law,Cap.
- 35 372 1C.L.B. InreBtinas A.LoboaP. The Assize Court of Limassol, however,- on the 7th June
- reject the applicant's application and refused to reserve any such Question of Law. The applicant thereupon filed Application No. 99/88 for leave 5 to'apply for Orders of Certiorari, Mandamus and Prohibition, as against the aforesaid rulings of the Assize Court and in addition ' filed the present application for leave to apply for an Order of Certiorari and/or Prohibition againstthe orderofcommittal ofthe applicant fortrialbefore theAssizeCourtofLimassoldatedthe5th 10 February,
- Thereliefssoughtaresetoutinthepresent application and they are briefly these: (A)Anorder ofcertioraritoremove intothe Supreme Court for thepurpose ofitsbeingquashed thecommittal oftheapplicant by 15 the District Court of Limassol, for trial before the Assize Court of Limassolfor the offences charged inthe relevant charge-sheet. (B) An order of prohibition, ^prohibiting the Assize Court of Limassol from proceeding toarraign and/or to i.y theapplicant in Criminal Case No. 22466/87 on the basis of the said committal 20 made bythe DistrictCourt of Limassol onthe5th February 1988, and/or on the information filed by the Attorney-General on the basisand/or inconsequence ofthesaid committal. Furthermore that all proceedings in the said Criminal Case be stayed until after the hearing of the motion or further order and 25 that allnecessary and consequential directionsbe given. The grounds upon which the said reliefs are sought are the following: 30 ^ «(a)The said committal wasinvalid in law and of no effect the said invalidity being an error of law apparent on the face of the record and/or was made in excess of the Court1 s jurisdiction or power in that the offences charged in the said Charge Sheet of Criminal Case No. 22446/87 (Exhibit 1) were not disclosed in the statements produced and/or examined bythe Court (Exhibit3);and/or (b)Thesaidcommittal wasinvalidinlawandofnoeffect the saidinvaliditybeinganerroroflawapparentonthefaceofthe record inthatthere wasnoevidence and/or sufficient evidence in law (as disclosed in the said statements produced' to 373 I A. Loftzou P. InreBttnss
(1988)the Committing Judge - Exhibit3)tojustify the committal of the Applicant totrialbefore theAssizeCourtofLimassol and/ or in that the said statements did not disclose the offences for which the Applicant was socommitted; and/or (c)Allsteps and/or proceedings flowing from and/or consequent upon the said committal are null and void and of no legal effect since they flowfrom and/or are dependent on the said invalid committal and are vitiated by the invalidity thereof; and/or 5 id) The Assize Court of Limassol will proceed to try the 10 Applicant on the basis of the said committal and the said subsequent stepsand/or proceedings {filing of Information, rejection of preliminary objections etc.) unless prohibited from doing so by an Order of Prohibition.» In an application for leave the question for determination is 15 whether there has been made out a prima facie arguable case sufficiently tojustifythegrantingofleavetotheapplicanttomovethis Court indue course toissuean Orderof Certiorari. Itis, however, sufficient if on the basis of the application and the affidavit in support, the Court issatisfied that such leave should be granted 20 (see inter alia In Re Nina Panaretou
(1972)1C.L.R. 165; In Re Kakos
(1985)1 C.L.R. 250. Aperusal of the material placed before me and inparticularthe record of the Committal Proceedings i.e. the statements of the witnesses, I have come tothe conclusion thatthere was sufficient 25 evidence to commit the accused for trial and therefore leave is refused there being no error of Law apparent on the face of the record. Before concluding I would like to observe that an Order of Certiorari is a discretionary remedy. Delay to apply is a valid 30 reason for refusing reviewof thelegalityof theorder challenged, if inexcusable. (See In Re Charalambos Aeroporos and Others Application No.9/88,judgment delivered byPikis,J., onthe25th May 1988,asyet unreported.*) In the present case the delay toapply isclearly inexcusable as 35 after the committal of the applicant no steps were taken for •Reportedin
(1988)1 CL.R. 302. 374 1C U R . InreEUlnas A.Lolzou P. quashingtheorderinquestion exceptafter theRulingoftheAssize Court given on the 1st June, 1988, dismissing the preliminary objections of the defence regarding the validity of the order of committal of the applicant and their refusal to reserve four 5 Questions of Law for the opinion of the Supreme Court. Iwould have dismissedtherefore thisapplication on that ground too. Foralltheabove reasonsthe leaveapplied for is refused. Application refused. 375