(1988)1988November 29 (STYLIANIDES.J.) INTHEMATTER OFANAPPLICATION BYMARIADEMETRIOU FOR LEAVETOAPPLY FORANORDER OFPROHIBITION AND INTHEMATTER OFDISCIPLINARY PROCEEDING BEFORE THE DISCIPLINARYBOARDOFDENTISTS. (ApplicationNo. 201/88). Prerogative Orders—Prohibition —Leave to apply for—Principles applicable. Prerogative Orders—Jurisdiction—Refers to matters outside the ambit ofArt. 146.1 ofthe Constitution. Disciplinary proceedings —Dentists—Nature of such proceedings — Possibility that itis outside ambit of Art. 146.1 of the Constitution cannot be excluded. 5 Prerogative Orders—Prohibition — When itlies. The applicant bythisapplication seeksleave toapply foran order of Prohibition and stay of the proceedings, pending against her, J Q before the Dentists Disciplinary Board. Charges have been preferred against her under the Dentists {Practice and Etiquette) Rules 1970 and the Dentists (Associations, Discipline and Pension Fund)Law, 1968, as Amended. Held, grantingleave toapply for an order ofprohibition: 15
(1)The applicant atthisstage hasto satisfy the Court that there is material before it on which, if it were accepted as accurate, an arguable case would be put forward.
(2)The power of this Court to issue prerogative orders extends only to such matters which are not within the jurisdiction of Article 20 146.The twojurisdictionsare mutually exclusive.
(3)Prohibition lies not only in excess or absence of jurisdiction, but, also,ina departure from the rulesofnaturaljustice. 678 1 C.L.R. Inre Demetriou {4)Atthisstage, onthebasis of thematerialbefore it,thisCourtis not prepared to pronounce that the said disciplinary proceedings are, in view of their essentia! nature, administrative proceedings coming within the ambit of Article 146.1 of the Constitution,and, therefore, notwithin theambit of Article 155.4. Leave to apply for prohibitiongranted. Casesreferredto: Ramadanv. ElectricityAuthorityofCyprusandAnother,1 R.S.C C. 10 49; Vassiiiou&Another v.DisciplinaryCommittees (1979}1C.L.R.46; Economidesv. MilitaryDisciplinaryBoard
(1979)1C.L.R. 177; Inre Droushiotis
(1981)1C.L.R. 708; it Frangos v. Medical Disciplinary Board and Others
(1983)1 C.L.R. 256; Christofiand Others v.lacovidou
(1986)1C.L.R. 236; R. v.ElectricityCommissioners [1924) 1K.B.D.204; R. v. North, exparte Oakey [1927] 1K.B.491; R. v. Kent PoliceAuthority, ex-parteGodden [1971] 3 All E.R.20; 20 Papasawasv. Educational Service Committee
(1979)1C.L.R.681; Inre Frangos
(1981)1C.L.R.311; Zenios &Another v.DisciplinaryBoard
(1978)1C.L.R. 382; Inre Psaras
(1985)1C.L.R.561; Inre Kakos
(1984)1C.L.R. 876. 25 Inre Kakos
(1985)1C.L.R. 250; Sidnell v. Wilson &Others [1966] 1All E.R.681; Land Securities pic v. Receiver for the Metropolitan Police District [1983] 2 All E.R. 254. Application. SO Application for leave toapply for an order of prohibition staying disciplinary proceedings before theDisciplinary Board of Dentists. M. Papapetrou, for the applicant. 679 ~ Η It In re Demetrlou
(1988)STYLIANIDES J. read the following judgment. The applicant by thisapplicationseeks leave toapply for an orderof Prohibition and stay of proceedings, pending against her,before theDentists Disciplinary Board. Charges have been preferred against her under the Dentists (Practiceand Etiquette) Rules 1970 andtheDentists(Associations, Discipline and Pension Fund)Law, 1968, as amended. 5 The power of thisCourttoissue prerogative ordersis set outin paragraph 4 of Article 155 of the Constitution.By Article 146 a separate system of administration of justice was introduced.This 10 introduced thejurisdiction of continental courts,theolder system of which functions in France.A judicial act οί an inferior Court cannot be made the subject of a recourse under Article 146. Itis reviewable onappeal before asuperiorcourtand/orsubject tothe appropriate prerogative orders. The power of this Courtto issue 15 prerogative orders extends only to such matters which are not within the jurisdiction of Article 146. The two jurisdictions are. mutually exclusive -(Hussein Ramadan and Electricity Authority of Cyprus and Another, 1 R.S.C.C. 49; Vassiliou& Another v. Disciplinary Committees,
(1979)1 C.L.R. 46; Economides v. 20 Military Disciplinary Board,
(1979)1 C.L.R. 177; In re Drousshiotis,
(1981)1C.L.R.708;Frangosv.MedicalDisciplinary Board and Others,
(1983)1 C.L.R. 256 Christofi and Others v. lacovidou,
(1986)1C.L.R. 236). Prohibition isanorderissued outof thisCourtanddirectedtoan 25 inferior Court,which forbids thatCourtto continue proceedings therein in excess of itsjurisdiction or in contravention of the laws of the land. Prohibition lies not only in excess or absence of jurisdiction, but, also, in a departure from the rules of natural justice -(R. v. Electricity Commissioners [1924] 1K.B.D.204; R. 30 v. North, ex-parte Oakey [1927] 1 K.B. 491; R. v. Kent Police Authority, ex-parte Godden [1971] 3 All E.R.20). The first issue is whether I possess jurisdiction to grant the applied for leave. Iwould not have possessed jurisdiction if it were clear thatthe 35 disciplinary proceedings in question are only of administrative nature. At thisstage, however, on thebasis of thematerial before me, I am not prepared to pronounce that the said disciplinary 680 1 C.L.R. Inre Demetrlou Styilanldes J. proceedings are, in view of their essential nature, administrative proceedings coming within the ambit ofArticle 146.1 of the Constitution, and, therefore, notwithintheambitofArticle 155.4. Ihave decided that I cannot, atthisstage,refuse, onthegroundof 5 absence of jurisdiction, theleave applied for.The issueof jurisdiction will have tobe determined at the outset of the consideration ofthemeritsoftheapplicant' sapplication for order of prohibition — (Papasawas v.EducationalService Committee,
(1979)1C.L.R. 681 and InreFrangos,
(1981)1C.L.R. 311). 10 15 The possibility cannot beexcluded that, depending onthe material available before theCourt in relation to particular disciplinary proceedings, itmight be argued that their essential nature is outside the ambit of Article 146.1 of the Constitution(see Economides v. MilitaryDisciplinaryBoard,
(1979)1 C.L.R. 177;Zenios&Anotherv. DisciplinaryBoard,
(1978)1C.L.R.382, 387). The applicant at this stage has to satisfy the Court that there is material before iton,which, if.it were accepted as accurate, an arguable case would be put forward. The expression «arguable 20 case» isused inthe sense of a case made out without the need to gointoanyrebutting evidenceputforward atthispreliminarystate - {In re Psaras,
(1985)1C.L.R. 561;InreKakos,
(1984)1 C.L.R. 876;InreKakos,
(1985)1C.L.R. 250;Sidneli v. Wilson& Others [1966] 1 AllE.R.681atp.686;Land Securitiespic v.Receiver for 25 the Metropolitan Police District, [1983]2AllE.R. 254, atp.258). Having regard tothe materialbefore me,set out inthe affidavit filed in support, Iam satisfied that an arguable case was made sufficiently tojustify the grant of leave and Idecided to make the following order:30 The applicant is granted leave to file an application for prohibition. Such application to be filed within three weeks from today. The relevant proceedings before theDentists Disciplinary Board shall be stayed for a period of three weeks from today;if 35 applicant applies for order ofprohibition within the appointed time, the proceedings to continue to be stayed untilthe determination ofsuch application. Copy ofthis order tobedelivered tothe Chairman ofthe Dentists Disciplinary Board. ·,Appifcation granted 40 681