(1989)1989August1 (BOYADJIDS J) INTHEMATTEROFTHEAPPLICATIONBYROBERTSMITHFORAN ORDEROFCERTIORARI, AND INTHEMATTER OFGUARDIANSHIPORDER, UNDERAPPL NO 141/85 OFTHE DISTRICTCOURTOFNICOSIA AND INTHE MATTEROFTHEORDER ISSUEDINTHEAFORESAID APPLICATIONBYTHEDISTRICTCOURTOFNICOSIAON2 786BY VIRTUEOFWHICHCHRYSSAR SMITH,WIFEOFTHEAPPLICANT, WASAPPOINTED GUARDIANOFELAINA,THEMINOR DAUGHTER OFTHEAPPLICANT, AND INTHEMATTER OFARTICLE 1554OFTHE CONSTITUTION, ARTICLE30 3 OFTHE CONSTITUTION, OFLAW 14/60,5 19AND 42 SUBSTITUTED BYLAW98/86 OFTHEADMINISTRATION OF JUSTICE (MISCELLANEOUS PROVISIONS)LAW33/64 AS AMENDED,OR ORDER 58RR 1,2,3 OFTHECIVILPROCEDURE RULES ANDREGULATIONS 9AND 10 OFTHEGUARDIANSHIP OF INFANTSANDPRODIGALS REGULATIONS (CivilApplicationNo 190/88) Prerogative Orders—Certioran —Delay in applying —A ground for refusing the remedy Prerogative Orders— Certioran —Practice— Though no rules have been enacted, the Courttends tofollow thepracticeand procedure m forcem Englandin I960 The applicant moved the Court to issue an order of Certioran, quashing the order whereby the guardianship and custody of applicant's infant daughter was given to her mother The drawn up order was served on the applicant on 24 3 87, that is about 18 months before filing of the apphcahon for leave to apply for certioran Noexplanation wasputforward forsuchdelay The Court held that such delay issufficient ground by itself for the dismissalof the application Application dismissed withcostsagainstapplicant 416 \ \ 1C.L.R. InreSmith \ Casesreferredto: \ Iacovidouv. Christophi
(1985)1 C.L.R.533; \ InReAeroporosandOthers
(1988)1 C.L.R.302; \ InReSykopetritisandSonsLtd. (notyetreported). 5 Application. Application foran orderof certioraritoremovetothe Supreme Court in order to quash the order of the DistrictCourt of Nicosia issued on 2 July, 1988 in Appl. No. 141/85 whereby the guardianship,careandcustodyoftheminorElainawasgrantedto 10 the respondent mother. £ Vrahimi(Mrs.), for the applicant. £ EfstathiouwithD.Koutras,forthe respondent. Cur.adv. vult. BOYADJIS J. read the following judgment. Pursuant to the 15 leave of this Court granted to him on 22 October 1988, the applicant Robert Smith, husband of the respondent Chryssa R. Smith and father of the minor Elaina R. Smith, now moves the Court for an order of certiorari to quash the order of the District Court of Nicosia issued on 2 July 1988 in the Originating 20 Application No. 141/85, whereby the guardianship, care and custody of the aforesaid minor were given to her mother, the present respondent. The ground upon which the applicant relies in.invoking the aforesaid relief ishisallegation thathewasdeprived ofhisrightto 25 defend the proceedings against him in breach of the rules of naturaljustice because (a) the application and affidavit served on him by post in England were written in Greek; (b) being of English origin and residing in England the only 30 language which heknowsistheEnglish language; (c)though copy of the order allowing substituted service upon himoftheaforesaidapplicationandaffidavitwasdrawninEnglish, it did not specify the relief sought so as to throw any light on the nature of theproceedings against him. 35 The respondent opposestheapplication onthemeritsand also onthegroundofunjustified longdelaybytheapplicantinfilinghis 417 ^BoyadjisJ. InreSmith
(1989)application. Insupport ofthe plea of delaymyattention has been drawn toExh.2attached totheaffidavit swornbytheapplicanton 4October 1988 insupport of the present application.Thisexhibit isacertified truecopyoftheorderoftheCourtdated2July 1986, drawn up in English, which was served on the applicant on 24 5 March 1987, i.e. more than eighteen months before the filingof thisapplication. TheCourtobserves inthisrespectthatatnotime has the applicant attempted to put forward any explanation whatsoever for thisinordinate delay. The remedy of certiorari is discretionary. Unjustified delay in 10 applying may justify the Court to refuse making the order; Nina lacovidou v.Manolis Chistophi
(1985)1 C.L.R.
- Under R.S.C. Ord. 53 r. 4 presently in force in England, an application forjudicial review shall be made promptly and inany event within three months from the date when grounds for the 15 application first arose, unless the period isextended bythe Court upon good reason.Wherethe reliefsoughtisanorderofcertiorari in respect of any judgment or order, conviction or other proceeding, the date when grounds for the application first arose shallbetakentobethedateofthatjudgment, order,convictionor 20 proceeding.Promptly,inthecontextoftheRule,meansassoonas practicable or as soon as thecircumstances of the case willallow: Annual Practice 1985,p.
- On the date of our Independence, the Rule applicable in England was RSC Ord. 59, r.4
(2)which provided that the 2b application foran order ofcertiorarishouldbemade notlaterthan six months after the date of the judgment, order, conviction or proceeding sought to be removed. inCyprus no Rulesof Court have yetbeen enacted prescribing theperiodwithinwhichanapplication forcertiorarimaybemade. 30 The English Rules are not,strictlyspeaking, applicable inCyprus. Yet, in the exercise of its jurisdiction under Article 155.4 of the Constitution, the Supreme Court is guided, to say the least, on procedural matters by the practice and rules of procedure which were in force in England in 1960. \riRe CharalambosAeroporos 35 and Others,
(1988)1 C.L.R. 302 Mr.Justice Pikisexpressed the view that «the" Supreme Court has consistently adhered to the rules applicable in England at the time of the introduction of the 418 \ \ 1 C.L.R, In re Smith BoyadjisJ. \ V Constitution». On the other hand, in Re G.P. Sykopetritis and \ Sons Ltd.*, Mr. Justice Stylianides expressed the view that, \ though the English Rules are not applicable in Cyprus in the Ιabsence of anycorresponding rules enactedinCypruswe followa 5 practicewhich issimilar butnotidenticaltothepractice prevailing in England. In the case under consideration, the delay is exceedingly long and totally unexplained. Thisisinjtself agood groundfor refusing the making of an order of certiorari, even if the application, 10 examined on itsmerits,were found justified. The application is, therefore, dismissed with costs against the applicant. Application dismissed withcosts. *Notreportedyet. 419