clr/1988/1988_1_532.pdf

(1988)1988 September 14 (KOURRIS,J.) INTHE MATTEROFARTICLE 155.4 OFTHECONSTITUTION ANDS.9 OF THECOURTS OFJUSTICE (MISCELLANEOUSPROVISIONS)LAW 1964, AND INTHEMATTEROFANAPPLICATIONBY THESPI CHRISTODOULIDESOFNICOSIAFORANORDEROFCERTIORARI. (Application No. 118/88). Prerogative orders — Certiorari— Leave to apply for — Principles applicable. Natural Justice — Order for payment of capitalgains tax— Allegation that taxpayer was not given opportunity to be heard — In the circumstances leave was granted to taxpayer to apply for certioran quashing saidorder. 5 The facts of this case appear sufficiently in the Judgment of the Court. Leave to apply for an ord&r of certiorarigranted. jQ Casesreferred to: A. G. ν Chnstou, 1962 C.L.R. 129 ExParteCostasPapadopoullos

(1968)1C.L.R. 66; Re Kakos

(1985)1C.L.R.

1. Application. 15 Application for leave to apply for an order of certiorari for the purpose of quashing the decision of the DistrictCourtof Nicosiain Cases Nos. 1606/87 and 1607/
2. A. Haviaras, for the applicant. Cur. adv. vult. 532 20 1 CX.R. 5 Inre Chrtstodoulides KOURRISJ. read the following decision.Thisisan application for leave to apply for an order of certiorari for the purpose of quashingthedecision oftheDistrictCourtofNicosia incasesNos. 1606/87 and 1607/87 and also for an order staying the writof execution issuedinrespect oftheaforesaid twocases. The facts of the case asthey appear from the affidavit swornin support ofthe application are as follows:- The applicant was the lawful attorney of a certain Haritihi K. Charalambidou byvirtue of a power of attorney executed by the 10 said Charalambidou and inthe said capacity he sold two building sitessituate at Strovolos. The Income TaxOffice imposed astaxunder theCapital Gains "'.axLaw,Law58/80inrespectofthesaleofthesaidtwoplots,the sum of£3,
3. 15 One of the Judges of the District Court of Nicosia, in dealing withthe caseson 5.4.1987, proceeded and ordered the applicant topaythesumof£3,404withinterestat9percent,withoutgiving the opportunity tothe applicant tobe heard. Theapplicant cametoknowoftheseproceedingswhenwritsof 20 execution were issued against him. (See exhibitsCandD). The question whichfallsfor detennination bymeatthisstageis whetherthere isa primafacie arguable casemade out sufficiently tojustify thegrantingof leavetothe applicanttomovethisCourtin due coursetoIssueanorderofcertiorari. 25 itisnotnecessary for metogointothematterthoroughly,butit issufficient ifonthebasisofapplicant'sstatementandthe affidavits insupport,theCourtissatisfied thatsuchleaveshouldbe granted. (See A G v. PanayioUsChristou, 1962 C.L.R. 129 atp. 134, ex parte Costas Papadopoulos,

(1968)1 C.L.R. 66; In Re Kakos 30

(1985)1C.L.R. 250). Atthisstage,itwouldappearthattheapplicanthasaprimafacie arguable case that there hasbeen a breach of the rules of natural justice and that there has been an error of law on the face of the record and in the circumstances, Igrant leave to the applicant to 35 file an application for an order of certiorari within 15days from today and all proceedings for execution in respect of Case Nos. 1606/87 and 1607/87 tobe stayed. Applicationgranted. 533