(1985) 1 CLR 692

[*692] 1985 November 14

 

[PIKIS, J.]

IN THE MATTER OF ARTICLE 155.4 OF THE CONSTITUTION

AND SECTION 3 OF THE ADMINISTRATION

OF JUSTICE (MISCELLANEOUS PROVISIONS) LAW 1964,

AND

IN THE MATTER OF AN APPLICATION BY MANOLIS

CHRISTOPHI, AND OTHERS, OF LIMASSOL, FOR AN

ORDER OF CERTIORARI AND PROHIBITION.

(Applications Nos. 58/85, 59/85, 60/85).

Eviction Order-Writ of possession-Civil Procedure Rule., 0.43A and The Rent Control Rules, Rule 11(a)-The function of the Court in issuing an order of possession under 0.43A is not of a judicial, but of a ministerial, character-Therefore, the, relevant order is not reviewable by certiorari or prohibition.

Prerogative Orders-Certiorari-The Court has discretion to withhold it, despite errors on the face of the record, if the conduct of the applicant is such as to disentitle him to relief- What constitutes such a conduct-Delay in applying, if inexcusable, is a ground for withholding the relief.

Prerogative order-Prohibition-Unlike certiorari it lies, as of right if the defect in jurisdiction is clear on the face of the record-Prohibition is not confined to judicial acts, but it extends to acts ancillary thereto.

Rent control-Jurisdiction of Rent Control Court to issue a writ of possession in execution of a judgment issued by a District Court .in 1975 affirmed on appeal-When the Rent Control Law 23/83 was enacted, the appeal was pending -.The said appeal was dealt with under s. 32(2) of Law 23/83-“Pending appeal” is s. 32(2) of Law 23/83- Meaning of-Following the dismissal of the appeal, the Rent Control Court was the Court competent to enforce the judgment of the District Court affirmed in the , said appeal. [*693]

Words and Phrases-“Pending appeal” in. s. 32(2) of Law 23/83.

In 1975 the applicants were ordered by the District Court of Limassol, exercising jurisdiction under the Rent Control Law 17/61, to vacate the business, premises -belonging to the owner. Endorsed copies of the orders were served upon the applicants, formally bringing the orders of the Court to their notice. The applicants appealed. The appeals were finally dismissed in November 1984.

The owner then applied to the Rent Control Court for the issue of a writ of possession pursuant to Order 43A of the Civil Procedure Rules made applicable by virtue of rule 11(a) of the Rent Control Rules 1983. A writ was issued on 12.1.85 directing the execution of the Orders made in 1975. The applicants continued in occupation and refrained from taking any steps questioning the validity of the writ. The execution, however, of- the writ remained in abeyance until 31.3.85 by virtue of the provisions of Law 6/85. On the expiration of Law 6/85 the - Legal Committee of the House of Representatives mediated with a view to bring the dispute between the parties to an end. Its efforts were crowned with success as the applicants expressed their readiness to vacate the premises by 31.8.85 and the owner agreed to refrain from enforcing the Orders before that date. Two days before the 31.8.85 the applicants moved the Court for leave to apply for certiorari- to quash the order -dated 12.1 85 and an order of prohibition to stop its - enforcement. Once more the orders of 1975 were put in abeyance.

Held, (1) The provisional view taken in the Ruling issued on 4.9.85 that the order of the Rent Control Court of 12.1.85 was of a judicial character - and as such amenable, to review does not absolve the Court of the duty to give -a final decision on the matter and resolve definitively the -nature of the said Order of the 12.1.85. On further reflection the Order dated 12.1.85 made under 0.43(A) of the Civil Procedure Rules is not an act of a judicial character liable to review, because the function of the Court is confined to verifying the existence of t-he pre requisites [*694] for the enforcement of an order of possession; the Court is not required to make an evaluation of the rights of the parties. The existence of an order of eviction, its terms and notices given to parties affected thereby can be verified by examination of the file of the case. The inquiry is par excellence of an administrative nature associated with the performance of a ministerial function. It follows that the Order in question is not reviewable by Certiorari and Prohibition.

(2) Certiorari may be withheld despite errors on the face of the record, if the conduct .of the applicant is such as to disentitle him to relief. What conduct disentitles the party to relief is impossible to define in advance in a comprehensive way. As a rule it encompasses conduct antagonistic to the ends of justice, such as fairness, probity and finality of proceedings. Inexcusable delay in applying is a. ground upon which relief has been repeatedly withheld.

Neither the enactment of Law 6/85 whereby the order of 12.1.85 was merely suspended (not abrogated) nor the letter of the Minister of Justice dated 5.1.85 whereby he informed the applicants that changes in the law were under consideration and advised them to seek legal advice on the implications of existing legislation, constitute a valid excuse for the applicants failure to apply to quash the order of 12.1.85 as soon as it came to their notice.

Be that as it may, if applicants had any excuse for failing to apply before the 3 1.3.85, they, had none after that date. They sought instead an accommodation with the owner and finally secured her forbearance by undertaking to vacate the premises the latest by 31.8.85. This is the reason of their failure to move the Court for certiorari and prohibition. After reaping every advantage from such undertaking they turned to the law in order to escape therefrom. In the applicants’ dealing with the owner there is a stark element of lack of probity. The Court will not allow, in the exercise of its discretion, the law to be used as an escape route from the clear undertakings of a party acted upon in good faith by the party to whom they were given. [*695]

(3) The writ of prohibition is not limited to acts strictly of a judicial character but also extends to acts ancillary thereto; and unlike certiorari, it lies as of right if the defect in jurisdiction is clear on the face of the record. The only acts of a judicial character relevant to these proceedings are the Orders of 1975 affirmed on appeal. The Order of 12.1.85 is not a judicial act.

Moreover, even if the Order of 12.1.85 was of a judicial character, the application for prohibition would still be dismissed in view of the refusal of the Court to quash the Order by certiorari in view of the conduct of the parties; for otherwise the odd situation would arise of allowing an order of the Court to remain in force while refusing the means of enforcing it.

(4) In this case the question of jurisdiction of the Rent Control Court to issue the Order dated 12.1.85 falls to be decided under section 32(2) of Law 23/83. The expression “pending appeal” is not defined by the law, but its meaning must be discerned by reference to the tenor and the objects of the Law. Following the dismissal of an appeal dealt with under s. 32(2) as it happened in this case, the Rent Control Court was the Court competent to take cognizance of an application for the enforcement of an. order made or sustained on appeal.

Applications dismissed.

No order as to costs.

Cases referred to:

Iacovidou v. Christophi (1985) 1 C.L.R. 533;

Re Droushiotis (1981) 1 C.L.R. 708;

R. v. Gateshead Justices [1981] 1 All ER. 1027;

R. v. Chichester Justices [1982] 1 All E.R. 1000;

Re HjiCostas (1984) 1 C.L.R. 513;

Wilson v. Colchester Justices [1985] 2 All E.R. 97;

R. v. Lewes Justices [1971] 2 All E.R. 1126; [*696]

Frangos v. Medical Disciplinary Board (1983) 1 C.L.R. 256;

Ex Parte Efrosyni Michaelidou (1969) 1 C.L.R. 118;

Hetherington Security Export Co. [1924] A.C. 988;

R v. Electricity Commissioners [1924] 1 K.B.D, 204;

Farquharson v. Morgan [1894] 1 Q.B. 552;

Westminster Bank Ltd. v. Edwards [1942] 1 All E.R. 470;

R. v. St. Edmundsbury and Ipswich Diocese (Chancellor) and Another Ex Parte White and Another [1947] 2 All E.R.170;

Re Psaras (1985) 1 C.L.R. 561;

Lambrianides v. Mavrides; 23 C.L.R. 49;

Papaconstantinou v. Spartacos (1985) 1 C.L.R. 202.

Applications.

Applications by applicants (tenants) for an order of certiorari quashing the authorisation of a writ of possession issued by the President of the Rent Control Court on 12.1.85 whereby the applicants were ordered to vacate the business premises belonging to the owners and for an order of prohibition restraining the execution of the above order

P. Pavlou with St. Pavlou, for the applicants.

Ph. Pitsillides, for the respondent.

Cur. adv. vult.

PIKIS J. read the following judgment. For the proper appreciation, of the issues raised in the three applications and determination in the proper perspective, it is necessary to recount the background to the applications succinctly recorded in a joint statement of the parties made before the Court at the commencement of the hearing. To that task we shall, to begin, address ourselves.

In 1975 the applicants were ordered by a judgment of the District Court of Limassol, exercising jurisdiction under the Rent: Control Law, 19611, to vacate the business premises belonging to the owner. Enforcement of the, orders [*697] was suspended for a period of one year in the case of two of the applicants and ten months in the case of the third. Thereafter, endorsed copies of the order were served upon the applicants, formally bringing the order of the Court to their notice. Execution was stayed following an appeal of the applicants to the Supreme Court, operative until the determination of the appeals. Proceedings before the Court of Appeal ended in December, 1978. The Rent Control Law, 1983 (Law 23/83) was enacted while judgment was still reserved. It introduced sweeping changes in the law. Before disposing of the appeals the Supreme Court invited the parties to raise any additional arguments they might wish to advance in the light of the new legislation. As the text of the judgment is not available we can only presume the reasons that led the Supreme Court to issue the above directions. Very probably they related to the, powers conferred on the Supreme Court by s. 32(2) of the law. The appeals were dismissed on 20.11.84. Simultaneously with the dismissal of the appeals the order for stay expired and the applicants came under a duty to vacate the premises in obedience to the order of the Court. Nevertheless, they remained in occupation, in defiance thereto.

The owner applied to the Rent Control Court, under Ord. 43.A, Civil Procedure Rules (applicable under Rule 11 A of the Rent Control Rules, 1983), for a writ of recovery of possession of the premises. A writ was issued on 12.1.85 directing the execution of the orders made in 1975. . Shortly afterwards Law 6185 was enacted, suspending execution of the orders upto 31.3.85. Applicants continued in occupation but refrained from taking any steps before any Court of law for questioning the, validity of, the order of 12.1.85: They became active in furthering their stay, so far as may be inferred from the agreed statement of facts, after the expiration of the law in April, 1985, by addressing themselves to the House of Representatives. The Legal Committee of the House of Representatives mediated, so far as we may infer from the statement of the parties, with a view to bring the long standing dispute between them to an end. Their efforts were crowned with success and an understanding was reached between the parties whereby, in. view of the professed readiness of the applicants to vacate [*698] the premises without any hindrance by 31.8.85, the owner agreed to refrain from enforcing the order prior to that, date. But that was not to be the end of the story. Two days before the 31st August, .1985, the date by which applicants undertook to vacate the premises, they moved the Court for leave to apply for certiorari to quash ,the order of the President of” the Rent Control Court of 12.1.85, and an order of prohibition to stop its enforcement. So after reaping the benefits from the representations made on 25th April, 1985 to the owner, the applicants refused to honour ,the obligations undertaken thereunder, and took steps to ensure their continued occupation of the premises; once more the orders made by the Court in 1975, affirmed on, appeal, were put in abeyance.

It is the case for the applicants that the Order of the Rent Control Court of 12.1.85 is reviewable by way of orders of certiorari and prohibition, the first directed towards quashing the authorisation of a writ of execution and, the second, restraining its execution. The direction given under Ord. 43.A is, it was argued, of a judicial character liable to be set aside for excess of jurisdiction on the part of the Court. In so far as certiorari is a discretionary remedy, the conduct of the applicants did not disentitle them from seeking the intervention of the Court, as their delay was allegedly excusable on account of the expectations of changes in the law, generated by a letter of the Minister of Justice dated 5.1.85. However, prohibition should go as of right, for no discretion vests in the Court to withhold the remedy, in face of a manifest defect of jurisdiction as the one noticeable in this case, by the assumption of jurisdiction by the Rent Control Court to direct the issue of a writ of possession respecting, orders made by another Court, the District Court of Limassol in 1975.

The owner refuted the suggestion that the Rent Control Court lacked jurisdiction to make the orders under question in these proceedings. Further, the remedies should, under any circumstances, be withheld in view of the contumelious conduct of the applicants and the futility of the Court intervening, considering that some Court of law [*699] should possess jurisdiction to authorise execution of orders made by a competent Court of Law.

Below, we shall deal with the issues raised, in the following order:

(1) The nature of the order of the Rent Control Court and its reviewability by way of certiorari and prohibition.

(2) Certiorari-The subject will be examined in conjunction with the conduct of the parties.

(3) Prohibition, and

(4) The jurisdiction of the Rent Control Court in relation to orders by a Court other than itself.

(1) The Order of the Rent Control Court-Its Character –Reviewability.

In my ruling of 4.9.85 I took the view the order of the Rent Control Court of 12.1.85 is one of judicial character and as such amenable to review. Nonetheless, it was stressed the decision was based on a prima facie appreciation of the nature of the order, explaining at the same time the attributes of a prima facie case. The provisional view taken of the nature of the order does not absolve me of the duty to give a final decision on the matter and resolve definitively the nature of the, order of 12.1.85. Counsel for the applicants cited a number of cases in order to reinforce the view that the decision is amenable to review. Emphasis was laid on a recent decision of the House of Lords, namely Wilson v. Colchester Justices, deciding that a warrant of commitment to prison for failure to comply with conditions imposed for the non activation of imprisonment, is a judicial act; therefore, by analogy, leave to issue a writ of possession granted under Ord. 43.A, should also be classified as a judicial act. It is significant to note [*700] the decision in Wilson, supra, respecting the characteristics of the judicial act of issuing a warrant of commitment to prison rested primarily on the interpretation of the provisions of s. 72(2) of the Magistrates Act 1980, and the discretion they confer upon the Court whether to activate the order of imprisonment. As the discretion of the Court affected the liberty of the subject the person concerned had a natural right to be heard in the matter. No such right to be heard vests in a tenant against whom a writ of possession is directed, in view of the express provisions of Ord. 43.A. contemplating the issue of a writ of possession on an ex parte application of the plaintiff. The case of R. v. Lewes Justices does not settle the matter in favour, of the applicants either. In the first place, the case did not purport to lay down a general principle of the law nor did it attempt to explore the dividing line between judicial and non judicial acts The Court expressly confined its decision to the reviewability by way of certiorari of a witness summons to produce documents claimed to be privileged. On further, reflection, I am disposed to hold that an order made under Ord. 43.A is not an act of judicial character liable to review. The function f. the Court is confined to verifying the existence of the prerequisites for the enforcement of an order of possession. In no way is the Court required to make an evaluation of the rights of the parties. .The existence of an order of eviction, the terms of it, as well as notices given to parties affected thereby, all can be verified by examination of the file of the case. It is par excellence an inquiry of an administrative nature, associated with the performance, of a ministerial function. .The powers vested, in the Court under Ord. 43.A are referable to the execution of Orders of, the Court and confined to implementing orders already made. This appreciation of the function of the Court under Ord. 43.A (falls in the class of ministerial functions, as depicted by Lord Buck-, master, in Hetherington Security Export Co. In. other words, it follows on the, “exercise of powers possessed by other people”. The only relevant judicial acts are the orders of the Court made in 1975, directing all applicants to give [*701] vacant possession of the premises sustained on appeal. The validity of the 1975 orders is not questioned. Nor could such a challenge be mounted in view of their confirmation on appeal.

Notwithstanding my decision that the order impugned is not revewable by way of certiorari and prohibition, I shall explore the remaining issues as well, in the interest of finality.

(2). Certiorari.

Certiorari, as acknowledged by counsel of both sides may be withheld, despite errors on the face of the record, if the conduct of the party seeking intervention of the Court is such as to disentitle him to relief. The nature of the discretion was outlined in Frangos. v. Medical Disciplinary Board, a judgment of the Full Bench of the Supreme Court, as well as in the judgment of the Court in this case, giving leave to apply for orders of certiorari and prohibition. I indicated that certiorari may be withheld if the conduct of the applicants is found to be contumelious. The breadth of the discretion of the Court to refuse certiorari is somewhat circumscribed where the defect of jurisdiction is manifest on the face of, the proceedings. However, in that case, too, there is discretion to withhold relief if the conduct of the applicant is such as to disentitle him to relief. What conduct disentitles a party to relief, is impossible to define in advance in a comprehensive way. As a rule, it encompasses conduct antagonistic to the ends of justice, such as fairness, probity and finality, of proceedings. Inexcusable delay in applying is a ground upon which relief has been repeatedly withheld. So important is the element of time in moving the Court for relief, that, in England, guided by experience of centuries, the right to apply for certiorari has been limited to six months. Proceeding within the six-month interval does not entitle the party as of right to relief; every delay must be excused, [*702] whereas only in exceptional circumstances is the time for applying enlarged beyond six months. Though no similar time-bar operates in Cyprus, an analogous duty exists to justify delay. The longer the delay the more onerous becomes the duty to excuse it. Delay is not the only ground upon which relief may be withheld. The inquiry extends into every aspect of the conduct of the applicant bearing on the subject under review. Where objectionable conduct is associated with delay in applying, it becomes of direct relevance to the exercise of the discretion of the Court.

For the applicants it has been submitted that the delay to apply, extending to nearly nine months, is excusable in view of:-

(a) the enactment of Law 6/85 suspending the enforcement of the order of the Court, and

(b) reasonable expectations of the parties for changes in the law, protecting their stay allegedly engendered by a letter of the Minister of Justice dated 5.1.85.

(c) Much reliance was placed on this letter as a justification for the delay to apply for certiorari. Examination of its content is hardly compatible with the allegedly high expectations of applicants. The Minister merely informed them that changes in the law were under consideration, advising them at the same time to seek legal advice on the implications of existing legislation. Whatever expectations this letter may have given rise to, they could not realistically extend beyond the protection conferred by Law 6/85. Allegations that applicants nourished such expectations after the expiration of the above law, are contradicted by their own representations made in the letter of 25.4.85, irrevocably undertaking to vacate the premises by 31.8.85.

Nor do I regard the enactment of Law 6/85 as a valid excuse for the failure of the applicants to apply to quash the order of 12.1.85 as soon as it came to their notice. The law did not abrogate the order; it merely suspended its enforcement for a strictly limited, period of time. Be that as it may, if applicants had any excuse for failing to [*703] apply prior to 31.3.85, they had none after that date. They sought instead an accommodation with the owner, giving undertakings in order to secure her forbearance from enforcing the orders of eviction. This forbearance they secured by unequivocal undertakings to vacate the premises the latest by 31.8.85. And by these undertakings they secured continuance of possession of the premises for a further period of time. This is the reason why they omitted to move the Court for certiorari and prohibition and not any expectation for changes in the law. The tenor of their letter of 25.4.85 suggests they had none; they settled with the benefits secured by their representations and undertakings of 25.4.85. After reaping every possible advantage from their aforesaid representations they turned to the law in order to escape from their undertakings. The machinery of the law was moved as a means of excusing their refusal to honour their unequivocal promises acted upon by the owner who slept on her rights in the sure expectation that applicants would honour their undertakings. Therefore, the delay of the applicants to move the Court is not due to any reason other than the advantages secured by their undertakings. There is, in their dealings with the owner, a stark element of lack of probity on their part. I find their delay to be wholly inexcusable and at the same time their conduct contumelious. No Court of law, I believe, would countenance such conduct with indifference. The Court will not allow, in the exercise of its discretion, the law to be used as an escape route from the clear under takings of a party acted upon in good faith by the party to whom they were given. The Court cannot allow the legal process to be abused in this way. Finality in the legal process, too, would be undermined - if the parties were Capriciously allowed to move the Court to intervene at any time it suited their ends. In view of the above, I find that the conduct of the applicants disentitles them to relief.

Mr. Pitsillides submitted that apart from the conduct of the applicants relief ought to be withheld for another reason, namely, the futility of intervention of the Court. In his submission, some Court of law does possess jurisdiction [*704] to authorise execution of orders of eviction, issued in 1975, and upheld on appeal. There is force in this submission, inasmuch as one could confidently assert that a Court of law does possess jurisdiction to order the enforcement of the ejectment orders after the refusal of the applicants to vacate the premises, following the dismissal of their appeals. If jurisdiction did not vest in the Rent Control Court, such jurisdiction vested in the District Court of Limassol either as, custodian of the jurisdiction under Law 17/61, or Law 36/75. However, I need not pause here and examine the, submission further, in view of the disinclination of the Court to, entertain applications for certiorari, for the reasons earlier explained.

(3) Prohibition.

Historically, the writs of certiorari and prohibition were evolved with a view to conferring jurisdiction on common law courts to control inferior courts from, assuming - jurisdiction not belonging to them or exceeding is boundaries .That remains the principal object of, the two writs though the availability of prohibition is not limited to acts strictly of a judicial character but “also extends to acts: ancillary thereto-Dionyssios Lambrianides v. Alexandros Mavrides, 23 C.L.R. 49. Further, unlike certiorari, prohibition lies as of right if the defect in jurisdiction is clear on the .face of the record.

The only acts of a judicial character relevant to these proceedings are the orders of 1975 affirmed on appeal. The order of 12.1.85, made under Ord, 43.A, Civil Procedure Rules, is not, as earlier explained, a judicial act. It is in substance a preliminary act of execution of an order of the Court. What the applicants seek to restrain is, in effect, a subsequent executionary step of enforcement of the, [*705] order. The last two acts are interwoven and none of them is of a judicial character. Unlike the case of Lambrianides, supra, the applicants are not challenging the legality of the orders of eviction giving rise to acts of execution. Nor can such a challenge of the orders of 1975 be entertained after the dismissal of the appeals. Need for activating the process of execution arose because of the refusal of the applicants to obey the orders of the Court.

Moreover, even if the order of the Rent Control Court was of a judicial character amenable to review, I would still be disinclined to entertain the application for prohibition associated with an application for quashing the order impugned by certiorari, in view of the refusal of the Court to interfere with the order because of the conduct of the applicants. The odd situation would arise of allowing an order of the Court to remain in force while refusing the means of enforcing it. For the above reasons the application for an order of prohibition is refused.

(4) Jurisdiction of the Rent Control Court to authorize Execution of Orders made by a Court other than itself.

It has been submitted the jurisdiction of the Rent Control Court to issue writs of possession is limited to orders made by the Court pursuant to the exercise of its powers under s. 4 of Law 23/83, and pending cases transferred to it under s. 32(1) of the same law. Mr. Pavlou supported his submission by reference to the recent decision in Papaconstantinou v. Spartacos, deciding that cases completed before the enactment of Law 23/83 fall outside the ambit of the jurisdiction. The case is also helpful in another respect, that is, in reminding that s. 10(2) (e) of the Interpretation Law-Cap. 1, saves the procedure of a repealed law as an instrument for the enforcement of orders given thereunder. Consequently, the repeal of Law 36/75 left intact the jurisdiction of the Court, set up thereunder to authorise execution of its judgment, in the same way that the repeal of Law 17/6 1 by Law 36/75 accomplished the same result. And this reinforces the submission noted [*706] earlier that it would be futile to quash by way of certiorari the order of 12.1.85 for another Court of law of coordinate jurisdiction possesses power to do the same thing.

However, in this case the question of jurisdiction falls to be decided under s. 32(2), the compass of which was not at all examined in Papaconstantinou, supra.

Counsel for the owner argued that the expression “any pending appeals”, introducing sub-section 2 of section 32, includes every appeal concerning an ejectment “order, pending at the time of the enactment of the law. Mr. Pavlou disputed this interpretation and submitted the ambit of this sub-section is confined to appeals against orders made by the Court vested, with jurisdiction under Law 36/75. The expression “pending appeals” is not defined by the law. Therefore, its meaning must be discerned by reference to the tenor of its provisions and the objects of the law. There is nothing in the wording of s. 32(2) supporting the limitation suggested by counsel for the applicants, while the meaning attached to it by counsel for the owner is con sonant with the wider aims of the law to regulate comprehensively all matters relevant to rent control and statutory tenancies. The invitation by the Court of Appeal to the parties to address it on the effect of the new law on the fate of the pending appeals is added indication of the validity of this interpretation. Following the dismissal of an appeal, dealt with under the provisions of s. 32(2), the Rent Control Court was the Court competent to take cognizance of an application for the enforcement of an order made or sustained on appeal.

For all the above reasons, the applications are dismissed. It is with reluctance I shall refrain from ordering the applicants to pay the costs. No order as to costs.

Application dismissed.

No order as to costs.

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