1C.L.R. 1988October22 (BOYADJiS.J.) IN THE MATTER OF THE APPLICATION BY ROBERT SMITH, NOWOFNICOSIA, FOR LEAVETOAPPLY FOR ANORDER OF CERTIORARI AND IN THE MATTER OF THE GUARDIANSHIP ORDER, UNDER APPL.NO. 141/85 OFTHEDISTRICTCOURTOFNICOSIA AND INTHEMATTEROFARTICLE155.4OFTHECONSTITUTION OF THECYPRUS REPUBLIC, COURTSOFJUSTICE LAW 14/60, CIVILPROCEDURE RULES ORDER 6, R.R. 1-9, OFTHERULES OF NATURAL JUSTICE AND ON THE INHERENT POWERS OF THECOURT. (ApplicationNo. 162/88). Prerogative orders—Certiorari —Leave to apply for—Principles applicable —«Prima facie case», «Sufficiently arguable case» — Twoconcepts identical. 5 10 Natural Justice—Service of application for custody of a child by the mother together withtheaffidavitinsupport thereofandtheorderfor service out of the jurisdiction on the father abroad — Application and affidavitdrafted in Greek, a language unknown to the father, whereas the order was drafted in English, a language known to him —Prima facie case justifying leave to apply for certiorari quashing the orderforcustody thatwaseventually made. Leave toapply forcertiorarigranted. The facts of this case sufficiently appear in the judgment of the Court.• Casesreferredto: HjiPapayiannis v.Registrarof Co-operative CreditSocieties
(1965)1C.L.R. 263; 619 Inre Smith
(1988)ReEfthymiou(1987} 1 C.L.R.17; ReLouciaMaroulleti
(1970)1 C.L.R.75; ReKakos
(1985)1 C.L.R.250; ReArgyrides
(1987)1 C.L.R. 23; ReEllinas(Tobereportedin
(1989)1 C.L.R.) 5 Application. Application for leave to apply for an order of certiorari to remove intothe Supreme Court of Cyprusand quash an orderof the DistrictCourtofNicosia inAppl.No. 141/85wherebyChrysso. R. Smith wasappointed asguardian of the infant Elaina. 10 E. Vrahimi(Mrs), for the applicant. Cur.adv. vult. BOYADJIS J. read the following judgment. This is an application submitted by Robert Smith, of Nicosia for leave to apply for an order of certioraritoremove intotheSupreme Court [5 and quash an order of the District Court of Nicosia made in Application No. 141/85 whereby applicant' s wife Chryso R. Smith was appointed asguardian oftheir infant daughter Elaina. The application is based on the contention that the order impugned isirregularandillegalandwasgivenincontravention of 20 the Rulesof Natural Justice. Asitappearsfrom theaffidavit swornbytheapplicantinsupport of the application, the facts are briefly these: The applicant isan English speaking British subject. He married Chryso Gavrielidou on 3.4.1971 and out of thismarriage Elaina was bom in England 25 on 11.10.1980. He was living in Cyprus holding temporary residence and work permits. He went to live in England alone when hisemployment wasterminated. On 15.4.1986 he received by registered postan office copyofan order oftheNicosia District Courtdrawn inEnglishandtwootherdocumentswritteninGreek, 30 a language that he does not understand. They have all been attached as exhibits tothe aforesaid affidavit. The documents in Greek are (i) his wife' s application to the Nicosia District Court praying for the granting to her of the guardianship and custody of their infant daughter, and (ii) her 35 affidavit filed in support of the application. The document in English is the order for service of the aforesaid application and 620 1 C.L.R. 5 10 In re Smith Boyadjls J. affidavit outcrfthe jurisdiction and byregistered post.There isno reference in the latter document either of the nature of the complaint against the present applicant or of the nature of the relief sought against him. Not knowing what the documents represented, he did not defend the case which proceeded in his absence. Thecompetence ofthisCourttogranttheremedysoughtbythe present proceedings emanates from section 9 of the Administration ofJustice(MiscellaneousProvision)Law,No.33of 1964andoriginatesinarticle155.4oftheConstitution andsection 19 of the Courts of Justice Law, No. 14of 1960.See loannis Hji Papayiannis v. The Registrar of Co-operative Credit Societies
(1965)1C.L.R. 263. The right of audience before a Court of Law isa fundamental 15 rule of natural justice and is safeguarded by article 30.3 of the Constitution. Departure from the rules of natural justice in Court proceedings isby itself a ground for the award of certiorari: Inre Efthymiou
(1987)1C.L.R. 17.Thisisconsistent withthe effective exercisebytheCourt ofitssupervisoryjurisdiction and controlling 20 powersover inferior Courts. 25 Atthis initialstage of the proceedings for the issue of the order of certiorari, the stage of obtaining leave on an ex-parte application, the Court need not go into the matter thoroughly because thisisnot thestagewhere theapplicant' scomplaint and contentions are examined and determined conclusively. The ;emedy is discretionary and the principles applicable to the exerciseoftheCourt'sjurisdictionarethesamewiththoseapplied in England. Thequestion whichfallsfordetermination atpresent iswhether the applicant has succeeded in making out a prima facie case sufficiently tojustifythegrantingofleavetohimtomovethisCourt in due time to issue an order of certiorari: InreLouciaMarouIIeti
(1970)1 C.L.R. 75. If an arguable issue arises out of the applicant' ssubmissions which meritsan answer, leaveshould be 351 granted. There, are numerous authorities dealing wifhithe. conceptsof«aprimafacie case»and«asufficiently arguablecase». TFseems thaTthe two conceptsare'identical, both ^ttnancRnglhe 30 621 Boya4jisJ . Inre Smith
(1988)existence on first view of a convincing enough case. See fur example In re Kakos
(1985)1C.L.R. 250, InreArgyrides
(1987)1 C.L.R. 23,and InreBlinas (CivilAppealsNos.7648and 7649) given on 2.7.1988 still unreported.* Having listened to the arguments of teamed counsel for the 5 applicant, without deciding.at this stage the validity of the applicant's contentions or whether the alleged illegality or contravention ofthe rulesof naturaljusticediditfact occur, 1hold the view that the applicant has succeeded in making out an arguable case deserving an answer and a more thorough 10 consideration after leave isgranted asapplied for. Leave is,therefore, grantedtoapplyforcertiorari.Theapplicant to file hisapplication within 15daysfrom today. Application granted. •To bereportedin
(1989)1 C.L.R. 622