(1989)1989 July 31 (STYUANIDES.J) IN THEMATTER OFANORDERFORIMPRISONMENTISSUEDBY THEDISTRICTOFNICOSIAINACTIONNO 9867/85ONTHE14 5 87 AND INTHEMATTER OFANORDERFORIMPRISONMENTISSUEDBY THE DISTRICTCOURTOFNICOSIAINACTIONNO 9867/85ON THE23 6 87 AND INTHE MATTER OFANORDERFORIMPRISONMENTISSUED BY THE DISTRICTCOURTOF NICOSIAINACTIONNO 9867/85 ONTHE2 3 1988 AND INTHE MATTEROFANAPPLICATIONBY CHRISTAKIS MICHAEL FORLEAVETOAPPLY FORANORDER OFCERTIORARIAND/OR PROHIBITIONTO REMOVETHEAFORESAIDTHREE WARRANTS OF IMPRISONMENTANDQUASH ΓΗΕΜ (Application No 106/89) Prerogative orders — Certioran — Leave to apply for — Pnnciples applicable Prerogativeorders — Certioran/Prohibibon — Purpose and scope of Prerogauve orders — Certioran — Error apparent on the face of the record — Asa ruleno afhdavidevidence isadmissible 5 The applicant was ordered to pay a Judgment debt by monthly instalments. He was committed to prison for failing to pay an instalment HecomplainsthattheJudge failed, contrarytosection 82 of the Civil Procedure Law, Cap 6, to examine whether, since the makingof theorder,hehadsufficient meanstopay,and,also,thathe 10 had,already, been committedtoprison for thesame Judgment debt and thathaving been discharged therefrom, his new committal was contrary to section 85 of Cap 6 The Court held that the applicant established an arguable case Leave granted Cases referred to Inre Attorney-General of the Republic (Notreported yet). 412 15 I CX.R. InreMichael Inre Kakos
(1984)1C.L.R. 876 and on appeal
(1985)1C.L.R. 250; Inre Psaras
(1985)1 C.L.R. 561; Inre Argyrides
(1987)1C.L R. 23; R v.NatBellLiquors Ltd. [1922]2 A.C. 128; 5 Baldwin & FrancisLtd. v.PatentsAppeal Tribunal and Others[1959] 2A1IE.R.
- Application. Application for leave toapply for theissueof orders ofcertiorari and prohibition in relation tothe orders for imprisonment issued 10 by the DistrictCourtof Nicosia in Criminal Case No. 9867/
- L. N. Clerides,for theapplicant. STYUANIDESJ. read the following decision. By means of this application the applicant, who is now in prison, seeks leave to apply for the issue of orders of Certiorari and Prohibition in 15 relation to order for imprisonment issued by the District Courtof Nicosia inAction No. 9867/
- In the application three orders are set out, but, today counsel appearing for him restricted hisapplication totheorderdated 2nd March, 1988, on the stength of which a warrant of imprisonment 20 was issued, invirtue of which he isnow inprison.β Certiorariisameansfor exercising thesupervisory power of this Courtover inferior Courts.Itisissued, interalia,onthegroundthat inthedecision sought tobe reviewed thereiserrorof law apparent on theface of the record.(See,interalia,Civil Application No.43/ 25 89 - Αναφορικά με το Γενικό Εισαγγελέα τη Δημοκρατίας{Judgment delivered on 31st July, 1989, not yet reported) in which theprevious judgments are cited and reviewed.) Prohibition is an order issued out of this Court directed to an inferior Court, which forbids thatCourtto continue proceedings 30 therein in excessof itsjurisdiction, or in contravention of thelaws of the land, or in departure from the rules of natural justice. At thisstage theCourthas tobe satisfied'that aprimafacie case is made out, or, as expressed otherwise, an arguable issue is raised. (See, inter alia, Inre Kakos
(1984)1 C.L.R. 876 and on 413 StytianidesJ. InreMichael
(1989)appeal
(1985)1 C.L.R. 250;InreP5aras
(1985)1 C.L.R. 561,564; InreArgyrides
(1987)1 C.L.R. 23,27.) The relevant material before the Court is the application, the affidavit insupport and the order of the District Court. The error of law, which counsel submitted isapparent on the face of the record, is twofold; 5 (
- a)That the order was issued contrary to section 82(
- a)of the Civil Procedure Law, Cap.6 (the«Law»),inthat the District Court did not examine whether -and had no material before him -the applicant, judgment debtor, has had sufficient means to pay the 10 money directed tobe paidby him and he refused or neglected to pay itaccordingto the order; and (b)That he had been inprison bypreviousorder, on accountof the same judgment, and was discharged. The order challenged is erroneous,asitisapparently contrarytothe expressprovisionsof 15 section 85 of the Law, which reads; «85. A debtor once discharged shall not again be imprisoned on accountofthesamejudgmentororder,buthis property shall continue liable toexecution untilthejudgment ororder isfully satisfied.» 20 The applicant is the judgment debtor in Action No. 9867/85. Judgment was issued by consent against him on 22nd March, 1986. On the application of the judgment creditor and upon examination by the District Court he was ordered to pay the judgment debt and costs by monthly instalment of £300 25 commencing on 1st November, 1986, until final payment. He failed orneglected and thefirstorderfor imprisonment wasissued on 14thMay, 1987,undersection82ofPartVIIIoftheLaw.Later, on 23rd June, 1987, another order, committing him toprison for thirty days, was issued under the same statutory provision, on 30 account of the same judgment debt. The applicant, according to the statement of his counsel, was imprisoned under one of those ordersand he was discharged. The order challenged is the order issued on the 2nd March, 1988, committing him to prison for 360 days, unless he pays 35 £1,412.35 within 90 days from service thereof. On the material before me, the applicant isimprisoned by this order of the Court, because of default of payment of instalments 414 1C.L.R. InreMichael Stylianide* I directed by the Court. Inthe past he wascommitted to prison oi account of the same judgment or order for which the challenged orderof 2nd March, 1988,wasissued and was discharged. Inthe affidavit ofthe applicant, sworn atthe central prisons on 5 29thJuly, 1989,itisstated: «... the Hon. Court failed to examine whether since the making of the original order to pay £300 per month on the 9.10.861hadsufficient meanstopay thesum due...» Itmay be said that when certiorari issought on the ground of 10 erroroflawontheface oftherecord,affidavit evidence isnot,asa rule, admissible, for the simple reason that the error must appear ontherecorditself-tf?.'v.NatBellLiquorsLtd., [1922]2A.C.128, per Lord Sumner, at p. 159; Baldwin &Francis Ltd. v. Patents Appeal Tribunal and Others (1959] 2 All E.R. 433, per Lord 15 Tucker,atp.443).Affidavits areadmissibletoshowthattherecord isincomplete whereupon thisCourtwould eitherordertherecord to be completed by the inferior Court, or it might quash the determination at once. Only affidavits put in by consent of the parties, as if they were part of the record, and make it into a 20 speaking orderare admissible. (InreArgyrides(supra)». In view of the foregoing, at this stage, arid for the limited purpose of this application, Iam satisfied that an,arguable issue wasraised entitlingthe applicant tothe leave sought. Further, counsel applied for stay of execution of the order. 25 pending the determination of the application to be filed by summons. Leave granted. Application to be filed within ten days; to be served on the address of counsel for the judgment creditor Execution of the challenged order is suspended until th» 30 determination of theapplication by summons. Applicationgrant*· 415