(1985) 1 CLR 789
[*789] 1985 November 19
[SAVVIDES, J.]
IN THE MATTER OF ARTICLE 155.4
OF THE CONSTITUTION
IN THE MATTER OF AN APPLICATION BY CHRISTAKIS
GEORGHIADES AND GEORGHIOS M. ELLINAS,
LIQUIDATORS OF CO-OPERATIVE SUPPLY UNION
NICOSIA (SPEL) LTD.,
AND
IN THE MATTER OF AN ORDER/DECISION DATED
20.6.1984 MADE BY THE DISTRICT COURT OF NICOSIA
AND BY HIS HONOUR S. DEMETRIOU.
(Application No. 67/84).
Prerogative orders-Prohibiton-Principles applicable-Prohibition issues as of right when the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party to such proceedings-The fact that an alternative remedy or an appeal lies against the absence or excess of jurisdiction does not fetter the Court from issuing the order of prohibition.
The Co-operative Societies Law, Cap. 114, Sections 41(1), 42(1) and (2), 44 and 46-Order of the Registrar of Co-operative Societies for the winding up Of a co-operative society, namely SPEL LTD., judgment debtors in actions 2557184 and 2558/84 in the District Court of Nicosia-Proceedings by the, judgment creditors for the attachment of assets of the said society in the hands of third persons-The judgment creditors had not first obtained leave of the Registrar -The Court could not take cognizance of the proceedings -Therefore, an Order of Prohibition would he issued.
The applicants are the liquidators of SPEL LTD. appointed in accordance with the provisions of Cap.114 [*790] under a liquidation, order of the Registrar of Co-operative Societies published in the Official Gazette of 15.6.1984. SPEL LTD., were the defendants and judgment debtors in Actions 2557/84 and. 255 8/84 brought against them by TRYFON DISTRIBUTORS LTD. and TRYFON INDUSTRIES LTD. respectively. In execution of the judgments in the said actions issued by consent on 19.4.84 the plaintiffs judgment-creditors filed applications for writs of attachments, against POUTICO CO-OPERATIVE STORE for £1,500, ATHIENOU CO-OPERATIVE STORE for £3,000 and DINOS Ph. TRIKOMITIS for, £2,000, praying, at the same time, for an order directing payment out of the said funds to the said plaintiffs in satisfaction, of the judgments.
The said applications came up for hearing on 13.6.84. The defendants through their counsel informed the Court and the plaintiffs of the order of liquidation and applied either for the dismissal of the application or for stay of the proceedings till they were amended and leave was obtained by the plaintiffs in accordance with the provisions of section 46 of Cap. 114. The trial Court proceeded to fix the applications on a new date giving at the same time directions to the defendants to file their opposition within 10 days as, from 20.6.84. As a result the applicants filed the present proceedings.
Held, (1) Prohibition. issues out of, the Supreme Court in accordance with Article 155.4 of the Constitution against, any inferior Court forbidding that Court to continue proceedings therein in excess of jurisdiction or in contravention of the Laws of the land. In deciding whether or not to grant an order of prohibition the Court will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction or that an appeal lies against, the absence or excess. Similarly, the fact that an appeal has already failed on the merits of the case in that the party applying for prohibition has himself initiated the proceedings in the inferior court is, not material to the decision of the Court to grant or to refuse the order. Where defect of jurisdiction is apparent on the face [*791] of the proceedings and the application is made by a. party, the order goes as of right and is not a matter of discretion. Smallness of the matter in dispute and delay on the part of the applicant are not in themselves grounds for a refusal. The order cannot, however, be claimed as of right unless the defect of jurisdiction is clear, nor will it normally be granted where a specific remedy is given by a statute which in effect substitutes the statutory remedy for the remedy by prohibition.
(2) It is an undisputed fact that SPEL LTD., i.e. the defendants and judgment-debtors in actions 2557/82 and 255 8/82 was wound up by an order of the Registrar of the Co-operative Societies under section 4 1(1) of Cap. 114 and the applicants were appointed as liquidators of such society. The powers of the liquidators are enumerated in section 42(1) of Cap.114. Any person aggrieved from an order of the liquidators determining questions of priority may, under Sub-section (2) of section 42, appeal to the Registrar within 21 days from the date of such order and the decision of the Registrar is final and conclusive.
Every order made by a liquidator under section 42 or by the Registrar has to be enforced by any District Court in the same manner as an order of such court upon a certificate under the hand of the Registrar (section 44).
A winding up order of a Co-operative Society, as above, is a bar for legal proceedings under the provisions of section 46.
It is clear from the above provisions that the Court could not have taken cognizance of the proceedings by the judgment-creditors for the attachment of the assets of the society in the hands of third persons, without such creditors having obtained first the leave of the Registrar. By allowing the proceedings to proceed the liquidators are hindered from exercising their powers under section 42(1) and the Court in any case will be acting in violation of the provisions of section 46. [*792]
(3) In the light of the above an order of prohibition would be issued.
Application granted.
Cases referred to:
Lambrianides v. Mavrides, 23 C.L.R. 49, 63;
Kyriakides v. Hilimindris (1963) 2 C.L.R. 171, 177;
Re Saveriades and Another (1982) 1 C.L.R. 831.
Application.
Application by applicants for an order of prohibition prohibiting Judge S. Demetriou Ag. President of the District Court of Nicosia from further proceeding in the matter of Actions Nos. 2557/84 and 2558/84 and from levying execution for the judgment entered by consent on 19.4.84 and from proceeding any further to hear plaintiffs’ application for the issue of a writ of attachment against Politico Co-operative Store and Others.
Chr. Clerides, for the applicants.
No appearance for the respondents.
Cur adv. vult.
SAVVIDES J. read the following, judgment. By means of this application the applicants seek an order for prohibition “prohibiting the District Court of Nicosia and His Honour Judge Sotos Demetriou from further proceeding in the matter of Actions Nos. 25 57/84 and 2558/84 in the Nicosia District Court between TRYFON DISTRIBUTORS LTD., and TRYFON INDUSTRIES LTD., both of Nicosia, respectively, plaintiffs and SPEL LTD., of Nicosia, defendants and from levying execution for the judgment entered by consent dated 19.4.1984 and from proceeding any further to hear the application of the said plaintiffs in the said actions for the issue of a writ of attachment against:-
(a) POLITICO CO-OPERATIVE STORE, of Politico,
(b) ATHIENOU CO-OPERATIVE STORE, of Athienou, [*793]
(c) DINOS PH. TRIKOMITIS, of Larnaca, and/or any other person and/or from further proceeding with execution in the said actions”.
Leave was granted earlier to the applicants on an ex-parte application to move the Court for an order of prohibition and the present application was filed in furtherance of such leave.
The applicants are the liquidators of SPEL LTD. appointed in accordance with the provisions of Cap. 114 under a liquidation order of the Registrar of Co-Operative Societies dated 13.6.1984 and published in the official Gazette of the Republic of 15.6.1984 under Nos.1489 and 1490. SPEL LTD. were the defendants and judgment-debtors in Actions 2557/84 and 2558/84 brought against them by TRYFON DISTRIBUTORS LTD. and TRYFON INDUSTRIES LTD., respectively. In execution of the said judgments the plaintiffs, judgment creditors, filed applications for writs of attachment against –
(1) POLITICO CO-OPERATIVE STORE for the sum of £1,500,
(2) ATHIENOU CO-OPERATIVE STORE for the sum of £3,000,
(3) DINOS PH. TRIKOMITIS for the sum of £2,000, praying, at the same time, for an order directing payment out of the above funds to the said plaintiffs for the satisfaction of the judgments in both actions.
The Said applications came up for hearing before Judge Demetriou, Ag. President, District Court on 20th June, 1984 on which date the defendants in the said action appeared in Court through their advocate and informed the Court, as well as the plaintiffs, judgment creditors, that an order for liquidation of the defendants SPEL LTD. had been made by the Registrar of Co-operative Societies and the relevant notice had been published in the official Gazette of the Republic. Counsel for the liquidators invited the Court to either dismiss the applications or stay the proceedings till the applications were amended and leave was [*794] obtained by the plaintiffs in accordance with the provisions of section 46 of Cap.114, from the Registrar of Co-operative Societies. The Court proceeded to fix the applications on a new date giving at the same time directions to the defendants to file their opposition within ten days as from 20.6.84.
As a result, the applicants instituted the present proceedings. it is the contention of counsel for the applicants that the learned Judge exceeded his jurisdiction and had no power to order and/or proceed any further to hear the said applications of the said plaintiffs, because-
(a) an amendment, of the title was necessary after the order for liquidation of the said society had been made, so as the liquidators be added,
(b) the said applicants did not apply and/or filed to apply to the Registrar to obtain leave form him to proceed with the said applications.
It is further alleged that in accordance with section 42(1) of Cap.114, the liquidators have power to manage the affairs of the company for its beneficial winding up and to investigate all claims against it and to decide by order questions of priority arising between claimants, which order, in accordance with section 44, shall be enforced upon a certificate under the hand of the Registrar as an order of the District Court. If proceedings for the enforcement f the judgment debt or execution are allowed to carry on, applicants allege that they will be deprived of the right to decide the issue of priority.
The further submissions of applicants were that-
(a) in view of the provisions of Cap.114, on civil court can issue a writ of attachment pending the liquidation of the company,
(b) any debts due to the company by third parties are by virtue of the liquidation under payable to the applicants and not to SPEL LTD. and, therefore, they cannot be the subject of an attachment by a creditor of the company who, will have to prove his debt with the liquidators and await [*795] for the determination of his priority vis-à-vis other creditors.
When this application came up for hearing, counsel appearing for TRYFON DISTRIBUTORS LTD. and TRYFON INDUSTRIES LTD., respondents in this application, stated that he had no objection if an order for prohibition is made and consented to the making of such orders. Due to the nature of the order, however, I fixed the case for hearing to hear counsel for applicant advancing the reasons why this order should be made.
I shall first deal with the law applicable to proceedings for prohibition. Prohibition issues out of the High Court of Cyprus under Article 155.4 of the Constitution in the same way as it issues out of the High Court in England against any inferior Court forbidding that Court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. In deciding whether or not to grant an order for prohibition the Court will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or that an appeal lies against the absence of excess. Similarly, the fact that an appeal has already failed on the merits of the case in that the party applying for prohibition has himself initiated the proceedings in the inferior court is not material to the decision of the Court to grant or to refuse the order. Where defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as of right and is not a matter of discretion. Smallness of the matter in dispute and delay on the part of the applicant are not in themselves grounds for a refusal. The order cannot, however, be claimed as of right unless the defect f jurisdiction is clear, nor will it normally be granted where a specific remedy is given by a statute which in effect substitutes the statutory remedy for the remedy by prohibition. (Halsbury’s Laws of England, 4th Edition, volume 1, paras 130, 131).
In paragraph 132 of Halsbury’s Laws of England (supra) it further reads:
“Where the defect is not patent, then even though the application is made by a party, the court has a [*796] discretion and. may decline, by reason of the conduct of the party, to intervene. A stranger has no right to require an order of prohibition; but where a clear excess of jurisdiction by an inferior tribunal is brought to the notice of the court, and a prohibition is necessary in order to enforce public order in the administration of the law, the court is bound to grain it, at least where the applicant has a personal interest in the outcome of the proceedings. It is otherwise if there is a doubt in fact or law whether the inferior tribunal is exceeding its jurisdiction or acting without jurisdiction.”
The above principles were considered and adopted by Bourke, C.J. in Lambrianides v. Mavrides; 23 C.L.R. 49, in which he had this to say at page 63:
“Where the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as of right and is not a matter of discretion. Prohibition in such case lies at any time, even after judgment or sentence in spite of laches or acquiescence of the applicant, and can go to prohibit steps being taken in execution to enforce anything that had been done in transgression of the limits of jurisdiction.”
In the same judgment at page. 57., we read:
“I take the law to be that the. Court, in deciding whether or not to grant an order of prohibition will not be fettered by the, fact that an alternative remedy exists to correct the absence or- excess, 11 Halsbury 3rd edn.p.115 Channel Coaling Co. v. Ross, [1907] 1 K.B. 145; R. v. Comptroller-General of Patents [1953] 1 All E.R. 862, p. 865. As to the other limb of the argument, surely it is plain that while there may be jurisdiction in the course of the determination of a cause or an erroneous, assumption of an authority which does not exist, which is open to correction by prohibition.”
The same principles were reiterated by Josephides, J. in [*797] Kyriakides v. Hilimindris (1963) 2 C.L.R. 171 in which at page 177, we read:
“Before proceeding further I think it will be useful to refer to the powers of the High Court in proceedings for prohibition conferred on it by the Constitution (Article 155(4)) and the common law. Prohibition issues to restrain all inferior Courts, acting or purporting to act, in the exercise of judicial functions; from acting in excess or outside the jurisdiction with which they are legally vested. Grounds, upon which application may be made, apart from excess or absence of jurisdiction, are departure from the rules of natural justice, and interest or bias on the part of the Judge. The order is granted as a matter of discretion, save, possibly, where application is made by the person aggrieved and the defect of jurisdiction is apparent on the face of the proceedings. In exercising its discretion, the Court will not be fettered by the fact that alternative remedies may exist; and prohibition may issue at any stage in the course of the proceedings which it is sought to restrain, and, in general, application must be made at the first instance after the defect of jurisdiction becomes apparent. In general prohibition lies in every case where certiorari would lie if the proceedings were completed.”
And at page 197:-
“I think that it is well settled that where the defect of jurisdiction is apparent on the face of the record no question of any discretion arises, because the applicant is entitled, as a matter of right, to the order sought for. But, where the defect is not apparent on the face of the proceedings the order is granted as a matter of discretion and the Court in exercising such discretion would have to consider whether the delay in moving for the remedy was reasonable or not.”
In Re Saveriades and Another (1982) 1 C.L.R. 831. the President Of this Court before arriving at his conclusion that there did not arise at all in that case an issue of lack, of jurisdiction for granting leave to apply for an order of [*798] prohibition, quoted at pages 833-834 of his judgment the following from Halsbury’s Laws of England (supra):-
“135. When Court has exceeded jurisdiction, Prohibition will issue as soon as the inferior tribunal proceeds to apply a wrong principle of law when deciding a fact on which the jurisdiction depends. Where proceedings are pending before an inferior court, part of which is within, and part is outside, the jurisdiction of the Court, no prohibition lies until the court has actually gone beyond its competency and jurisdiction. In any event, where the jurisdiction of the inferior court depends on the judicial determination of facts the order does not lie until the court has wrongfully on these facts purported to give itself jurisdiction.
136. Earliest time of applying for prohibition. Prohibition may be applied for as soon as the complete absence of jurisdiction is apparent on the record of the proceedings of the inferior court, without the question of jurisdiction being raised in that court.
Even though the jurisdictional defect is not patent, an applicant will not be required first to take objection before the tribunal whose proceedings he seeks to impugn when the question is one of law, not dependent on disputed issues of fact, or when he is contending that the tribunal is improperly constituted because of the likelihood of bias.
In any event, it appears that, prohibition may issue once steps have been or are about to be taken involving a usurpation of jurisdiction.”
Section 46 of the Co-operative Societies Law, Cap. 114 on which counsel for applicants sought to, rely, provides as follows:
“Save as in so far as it may be expressly provided in this Law, no civil Court shall take congnisance of any matter connected with the winding up of a registered [*799] society and when a winding up order has been made no suit or other legal, proceedings shall lie, or be proceeded with against such society except by the leave of the Registrar and subject to such terms as he may impose.”
With those authorities in mind I shall proceed to deal with the points raised in the present case. It is an undisputed fact that SPEL LTD. the defendants and judgment debtors in civil actions 2557/82 and 2558J82, a co-operative society registered under the Co-operative Societies Law, Cap. 114, was wound up by an order of the Registrar of the Co-operative Societies under section 41(1) of Cap.114, and the applicants, were appointed as liquidators of such society. (Notice to that effect was published in the official Gazette of the Republic of, 15.6.1984 under Notifications 1489 and 1490).
The powers of the liquidators so appointed are enumerated under section 42(1) of the respective law and in- dude, inter alia, the taking of immediate possession of all assets belonging to the society, refer to arbitration any dispute touching the business of the society; investigate all claims against the society; pay claims against the society, according to their respective priorities, if any, in full or rateably, as the assets of the society permit; fix the time within which creditors shall prove the depts, and claims or be excluded from the benefit of any distribution made before those debts or claims are proved.
Any person aggrieved from an order of the Liquidators determining questions of priority may, under subsection (2) of section 42, appeal to the Registrar within 21 days from the date of such order and the decision of the Registrar is final and. conclusive:
Every order made by a liquidator under section 42 or by the Registrar has to be enforced by any District Court in the same manner as an order of such Court upon a certificate under the hand of the Registrar, (section 44).
A winding up order of a Cooperative Society, as above, [*800] is a bar for legal proceedings under the provisions of section 46 referred to the full next of which has already been made.
It is clear from the above provisions that the Court having been notified of the fact that a winding up order has been made against SPEL LTD. would not have taken cognisance of the proceedings by the judgment creditors for the attachment of the assets of the society in the hands of third persons, without such creditors having obtained first the leave of the Registrar. By allowing the proceedings to proceed the liquidators are hindered from exercising their powers under section 42(1) and the Court in any case will be acting in violation of the provisions of section 46.
For all the above reasons I hold that the applicants have shown good cause why an order of prohibition should be made. In the result, it is ordered that the District Court of Nicosia and the Acting President District Court Judge S. Demetriou, be prohibited and are hereby prohibited from further hearing and determining the applications of the plaintiffs, judgment creditors in Civil. Action 25 57/84 and
2558/84, namely, TRYFON DISTRIBUTORS LTD. and. TRYFON INDUSTRIES LTD. for the attachment of debts due by
(a) POLITICO CO-OPERATIVE STORE of Politico,
(b) ATHIENOU CO-OPERATIVE STORE, of Athienou,
(c) DINOS PH. TRIKOMITIS, of Larnaca to SPEL LTD. now under liquidation and/or to the applicants in these proceedings as Liquidators of such society.
And it is further ordered that this matter be remitted to the said Court and Judge for further consideration in the light of the judgment of this Court.
Bearing in mind the fact that the respondents did not oppose this application, I make no order for costs.
Application granted.
No order as to costs.
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