1C.L.R. 1989 April 12 (KOURRIS J ) INTHEMATTER OFARTICLE 155 4 OFTHECONSTITUTION ANDSECTION9 (OFTHECOURTSOFJUSTICE (MISCELLANEOUSPROVISIONS)LAW, 1964, AND IN THE MATTER OFANAPPLICATIONBYTHEOCHARIS CHARALAMB1DES FORAND ORDEROF CERTIORARI (Application No 5/89) 5 10 CivilProcedure — Execution of Judgments for payment of money — Order that judgment debt be paid by instalments — Committing debtor to prison for failureto pay an instalment — Prerequisites — The CivilProcedureLaw, Cap 6,section 82 — The Courtmust be satisfiedthat the debtor had sufficientmoney to pay the instalment and refused or neglected to do so — Committing debtor to prison withoutholding an inquirymrespect of suchmatters — Quashed by certiorarifor excess or abuse ofJurisdiction The facts of this case sufficiently appear in the hereinabove headnote Orderof Certiorariissued .Application, Application for an order of certiorari to remove into the Supreme Court and quash the decision of the Distnct Court of 15 Nicosia committing the debtor to pnson on the application of the creditor under Part VIII of the Civil Procedure Law, Cap 6 in action No 184/83. A Eftychiou, for the applicant Μ Tsangandes for Τ Papadopoulos, for the respondents 20 Cur ddv vult KOURRISJ readthe followingjudgment This isan application or an Order of Certiorari to remove into this Court and quash the decision of the Distnct Court of Nicosia committing the debtor to 213 KourrisJ. InreCharalambides
(1989)prison on an application ofthe creditor underpartVIIIof theCivil Procedure Law,Cap.6incaseNo. 184/83.On28.12.1988,leave was granted to applicant to move this Court for an Order of Certiorari and, in pursuance of such leave, applicant filed the present application. 5 The facts of the case, as they appear from the affidavit filed in support of the application for leave to apply for an Order of Certiorari, are as follows: On 13.6.1983, Popular Bank Ltd. obtained Judgment in case No. 184/83 against Galatia Anastassiadou asprincipal debtor and 10 againsttheapplicant asguarantor forthesumof£550plusinterest at9% from 3.5.1982 and £104.25costs. The judgment debtors failed to pay the judgment debt and on 26.2.1985 theJudgment creditor filed an application for monthly instalments whereupon the District Court of Nicosia on 15 26.2.1985, ordered them topay the Judgment debt and costsby monthly instalments of £35 each, commencing on 1.4.1985until final payment plus£40.15centscosts. On 14,2.1987, thejudgment creditor filed anapplication under s.82 of the Civil Procedure Law, Cap. 6, praying for an Order of 20 imprisonment of the judgment debtors on the ground that they failed to pay the monthly instalments. On 23.3.1987 applicant filed a notice opposing the said application and in support he swore an affidavit dated 23.3.1987 and asupplementary affidavit 25 sworn on 29.4.1987. According to the affidavit in support of the application, the learned trial Judge instead of hearing the application and ' examining the Judgment debtor in accordance with s.82 of the Civil Procedure Law, Cap. 6, proceeded to issue an Order for committing to prison the applicant. (See exhibit 1 to the 30 application and exhibit3 ofthe opposition). Thegroundson whichthepresentapplication arebased are:(
- a)theOrder committingtoprisontheapplicantwaswronginlawand there isan error of law apparent ontheface ofthe record; and(
- b)that thetrialJudge acted inexcessorabuse ofjurisdiction toissue 35 the said committing order. Respondents opposed the application and in the affidavit filed insupport,theysayineffect thatthecommittingorderwas lawfully 214 1C.L.R. In reCharalambides Kourris J. issued by the trial Judge in that there has been in substance compliance with s.82 of Cap. 6. Counsel for the respondents also argued that there was ample evidence before the J n ^ e to issue the Order committing the 5 applicant to prison. Ido not agree with counsel for the respondents that there has been compliance with s. 82 of the Civil Procedure Law, Cap. 6. Section 82 provides, inter alia, that the Court, before committing a debtor toprison for any term,must be satisfied that 10 «the debtor then, has or since the making of the Judgment or Order, hassufficient money topay the money directed tobe paid by him, orsome part thereof which still remains unpaid, and that he refuses or neglects to pay it according to the Judgment or Order». 15 Inthepresentcase,thetrialJudgeproceeded toissuethe Order committing to prison the debtor without holding an inquiry to satisfy himself that the Judgment debtor has sufficient means to pay the monthly instalments, and that he refused orneglected to pay same. He relied on some statements made by counsel and 20 statements by the applicant on the date when the application to commit the applicant toprison wasfixed for hearing. Forthispurpose, I have alsoperused not onlythe exhibits filed insupport of the application, butalso the file of No. 184/83andI have been satisfied that the Court failed to comply with the 25 provisionsof s.82 of Cap. 6. Forthesereasons, IthinkthetrialCourtacted inexcessorabuse ofjurisdiction to issue the said committing order. Forallthese reasons, Idirect thatthe proceedings reviewed be quashed.Orderof Certioraritoissue.Noorder forcosts. 30 Application granted. No orderasto costs. 215