(1988)1988December 28 (KOURRIS,J.) INTHEMATTEROFART. 155.4OFTHE CONSTITUTION ANDSECTION 9OFTHECOURTSOFJUSTICE (MISCELLANEOUSPROVISIONS) LAW 1964 AND INTHEMATTEROFANAPPLICATIONBYTHEOCHARIS CHARALAMBIDES FORANORDER OFCERTIORARI ANDFORANORDER OF PROHIBITION. (ApplicationNo. 207/88). Prerogative Orders— Certiorari—Leave to apply for—Principles applicable. CivilProcedure —Execution —Orderforpayment ofjudgment debtby instalments —Default in paying an instalment —Application for debtor's imprisonment — TheCivilProcedureLaw, Cap.6,s.82 — Allegation by debtor that trialJudge committed him to prison without firsthearing the application, (which had been opposed by the debtor) and examining thedebtor —On basisofsuchallegation debtor established a prima facie casejustifying leave to apply for certiorari. 5 The facts for this case appear sufficiently in the judgment of the Court. Lee.vetoapply forcertiorarigranted. Cases referred to: 15 Attorney-General v.Christou, 1962C.L.R. 129; ExParteCostas Papadopoulos
(1968)1C.L.R.66; Re Kakos
(1985)1C.L.R.
- Application. Application for leave to apply for an order of certiorari for the purpose of quashing the decision of the District Court of Nicosia committing the debtor toprison on the application ofthe creditor. 760 20 1C.L.H. Inre Charalambtdes A. Eftychiou, forthe applicant. Cur.adv. vult. KOURRISJ. read the following decision.Thisisan application for leave to apply for an order of certiorari for the purpose of 5 quashing the decision of the District Court of Nicosia committing the debtor to prison on the application of the creditor under Part VIIIof the CivilProcedure Law, Cap. 6, in Case No. 184/
- The facts of the case as they appear from the affidavit sworn in support of the application are as follows:10 On 13.6.1983 Popular Bank Ltd. obtained judgment in Case No. 184/83 against Galatia Anastasiadou as principal debtor and againsttheapplicantasguarantorforthesumof£550.-plusinterest at9% from 3.5.1982 and £l04.25c costs. The judgment debtors failed to pay the judgment debt and on 26.2.85 the judgment creditors filed an application for monthly instalmentswhereupon the DistrictCourt ofNicosiaon 26.2.1985 ordered them to pay the judgment debt and costs by monthly instalments of £35.- each commencing on 1.4.1985 until final payment plus£40.15c costs. 20 On 14.2.1987 thejudgment creditor filed an application under Section 82 of the Civil Procedure Law, Cap. 6, praying for an orderofimprisonmentofthejudgmentdebtorsontheground that they failed to pay the monthly instalments. On 23.3.1987 applicant filed a notice opposing the said application and in 25 support he swore an affidavit dated 23.3.1987 and a supplementary affidavit sworn on 29.4.
- According to the affidavit in support of the application the learned trial judge instead of hearing the application and examining thejudgment debtor inaccordance withSection 82of 30 the Civil Procedure Law,Cap.6, proceeded to issue an order for committing toprison theapplicant (see Exhibits2 and 3). The question which falls for determination by me at thisstage is whether there is a prima facie arguable case made out sufficiently tojustify thegrantingof leavetotheapplicant to move 35 the Court in due courseto issuean order of certiorari. Itisnotnecessary for metogointothematterthoroughly,butit issufficient ifonthebasisofapplicant' sstatementandthe affidavit Konrris J. In reCharalambldes
(1988)insupport, the Court issatisfiedthatsuchleaveshouldbegranted (seeA. G.v.Panayiotis Christou, 1962C.L.R. 129atpage134,Ex Parte Costas Paoarlnnoullos
(1968)1 C.L.R. 66, In Re Kakos,
(1985)1 C.L.R. ?50). In view of the contents of the affidavit I am satisfied that the delay of the applicant to file thisapplication wasjustified. 5 At thisstageitwould appearthattheapplicant hasaprima facie arguable case, that the trial Judge acted in excess of jurisdiction and that there hasbeen an error of law on the face of the record and in the circumstances, Igrant leave to the applicant to file an 10 application foranorder ofcertiorariwithin 15daysfromtodayand all proceedings for committal toprison of theapplicant in respect of the order dated 29.4.1987 inCaseNo. 184/83 tobestayed. Application granted. 782