NICOLA L. GEORGHIADES AND OTHERS ν. YOUSSOUF ZIA. (V1) 1 CLR 57 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V1) 1 CLR 57 1888 December 19 [BOVILL, C.J. AND TEMPLER, ACTING J.] NICOLA L. GEORGHIADES AND OTHERS Plaintiffs, v. YOUSSOUF ZIA Defendant. MUNICIPAL COUNCIL-DECLARATION OF MEMBER-UNAVOIDABLE CAUSE PREVENTING MAKING OF DECLARATION-PENALTY-APPLICATION OF PENALTY-MUNICIPAL COUNCILS' ORDINANCE,1882, SECTIONS 43 AND
- Section 43 of the Municipal Councils' Ordinance, 1882, provides that if any unqualified person shall acts as President, Vice-President or Member of a municipal Council be shall "for every such offence forfeit the sum of $20, such sum to be recovered with full costs of suit by any person who will sue for the same." By Section 99, when the application of any penalty is not otherwise provided for, any portion thereof not exceeding one-half may be awarded to the informer, etc. HELD: That the words of Section 43 do not import any application of the penalty to be recovered thereunder; and that under Section 99 not more than one-half to such a penalty can be awarded to an informer. APPEAL from the District Court of Larnaca. Action to recover the sum of $20 as a penalty for having acted as Vice-President of the Municipal Council of Larnaca without having made the declaration required by Section 38 of the Municipal Councils Law, 1882, within seven days of the date of election as a Municipal Councillor. An election of members for the Municipal Council of Larnaca was held on the 22nd March, 1888, at which the defendant was elected a member; and on the 30th March he made a declaration in the form required by Section 38 of the law. That section provides that if any person elected a member shall neglect to subscribe the declaration within seven days from the date of his election, unless prevented by illness or other unavoidable cause, he shall cease to hold office. On April the 2nd the defendant was elected Vice-President of the Council. He admitted having done an act in his capacity of Vice-President of the Council on April 4th, and pleaded that he was a Government official and unable to leave his duties before March the 30th and so was prevented by an unavoidable cause from making the declaration required by Section 38 within the seven days. The District Court gave judgment for the plaintiff. The defendant appealed. Rossos for the appellant contended that the defendant was bound as a Government official not to leave the work on which he was engaged at the salt lake near Larnaca, and that he was thus prevented by an unavoidable cause form making the requisite declaration within the time prescribed. Collyer, Q.A., for the respondents: (with regard to a question raised by the Court as to the application of the penalty under Section 99). Section 43 says that the sum is to be recovered by any person who will sue for the same: and this means that the penalty is to be recovered and is applicable to him. Section 99 does not refer to such a case as this but to such cases as is provided by Sections 103 and
- Judgment: This is an action brought to recover penalties under the Municipal Councils' Law of 1882 from the defendant, who was elected a member of the Council in March last. There are several grounds put forward in support of the claim of the plaintiffs that the defendant shall be ordered to forfeit penalties, and the Court below has held that the defendant is liable to pay a penalty of $20 for issuing certain building permits, on the ground that having been elected a member of the Municipal Council of Larnaca he failed within seven days from his election to make and subscribe the declaration required of him by law as a member; that he thereby ceased to be a member, and that in subsequently issuing building permits he wrongfully acted as a member of the Council when he was invested with no such office. The issuing of building permits is the only act alleged as a ground of forfeiture. The Court has ordered the forteiture of a penalty of $20 and against that there is no appeal in the part of plaintiffs. It has been alleged by the plaintiffs, that the defendant in issuing these permits wrongfully acted as Vice-President of the Council. We do not propose to go into that questions. It rests entirely the same ground as the contention in an action brought by these plaintiffs against N. Rossos on which we have recently delivered a judgment setting out our views. Now as to whether defendant by failing within seven days of his election to make his declaration that he accepted office as a member of the Council thereby ceased to be a member. As to that there can be no doubt, unless defendant was, in the words of the Ordinance, "prevented by illness of other unavoidable cause from so doing." And it is alleged that he was prevented by unavoidable cause. The unavoidable cause put forward is that he had official employment which kept him at work at the salt lake from morning till night from the 27th of March till some date in April. We cannot see how this cause unavoidable prevented him from making his declaration. The defendant was every morning and evening at Larnaca and might then have made his declaration before two members. There is no evidence whatever that he attempted to do so. He appears to have altogether neglected to make the declaration required of him and we are of opinion that the thereby ceased to be a member of the Council, and his subsequent acts as a member are therefore such as to bring him within the law. For these reasons we are of opinion that the judgment of the District Court is right and we must confirm it in so far as it orders the payment of a penalty by defendant. There is, however, one point on which we think the judgment needs correction. The law, Section 43, says that if any person shall acts as a Councillor without having made the declaration in that behalf required, or after he shall cease to be qualified, he shall forfeit the sum of $20, such sum to be recovered with full costs of suit by any person who will sue for the same within three calendar months; and Section 99, provides that when the application of a penalty is not otherwise provided for, any portion not exceeding one-half, may be awarded to the informer and the remainder to the Municipal Council; and it has been assumed that when the law says a penalty may be recovered by an informer it has thereby directed it to be applied for the benefit of the informer. We are ourselves disposed to think that that was the intention with which Clause 43, was framed; but we had at the time of the hearing of the appeal doubts whether the language of the clause had given effect to that intention, and on a consideration of that language we do not think it has. The language is taken directly from an English law dealing with the affairs of Municipal Corporations. The word recover is used in exactly the same way in that law, and in the same clause in which it is used directions are given as to the application of the sum recovered similar to those which we find in Section
- We do not therefore think that the informer is entitled to take the full penalty; he is, in our opinion, entitled only to such part of it (not exceeding a half) as the Court may direct. We are of opinion that this is not the intention with which Section 43 was framed, and we think it unfortunate that the law does not absolutely provide for the application of the penalty. In this case the defendant has, through mere carelessness, rendered himself liable to this penalty. He has not in any way acted in bad faith, with wrongful purpose, but he has acted with culpable carelessness, and it is perhaps no bad thing that persons taking upon themselves the responsibilities of the office of Municipal Councillor should understand that they are taking upon themselves responsibilities and not merely powers. Our decision in this case proceeds on a bare statement of facts. Whatever motives may have prompted them to institute this action, and that is a matter we are not concerned to enquire into and which does not come under our notice in this action, we are of opinion that the plaintiffs have done no bad thing from the point of view of the public in manifesting the fact that the assumption of office is an assumption of responsibility. We shall therefore award half the penalty to the plaintiffs; the other half will go to the Municipal chest, and the defendants must pay the costs of the action. Judgment varied. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο