EFTHYVOULOU ν. REPUBLIC
(1988)3 CLR 776 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
(1988)3 CLR 776 1988 April 16 [A. LOIZOU. P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION TAKIS EFTHYVOULOU, Applicant. v. THE REPUBLIC OF CYPRUS, THROUGH THE EDUCATIONAL SERVICE COMMISSION, Respondents. (Case No. 994/85). Abatement of recourse for annulment-Revocation of sub judice act-Principles governing effect of revocation-Strakka Ltd. v. The Republic
(1988)3 C.L.R. 760, adopted-Burden of proving adverse consequences or damages or detriment or prejudice during the time of the operation of the sub judice act-Lies on the applicant. Absence of evidence to that effect Recourse against sub judice transfer of applicant (which in the meantime had been revoked) dismissed. The facts of this case appear sufficiently from the judgment of the Court. Recourse dismissed. No order as to costs. Cases referred to: Strakka Ltd. v. The Republic
(1988)3 C.L.R. 760; Agrotis v. The Republic
(1983)3 C.L.R. 1397 Neocleous v. The Republic
(1986)3 C.L.R. 81; Papamichael v. The Republic
(1986)3 C.L.R. 2038; Evlogimenos v. The Republic
(1986)3 C.L.R. 2042; Papantoniou v. The Republic
(1988)3 C.L.R. 320; Recourse. Recourse against the decision of the respondent to transfer applicant from Third Gymnasium Paphos to Panayia Gymnasium. L. Papaphilippou, for the applicant. R. Vrahimi - Petridou(Mrs.), for the respondent. Cur. adv. vult A.LOIZOU P. read the following judgment. The applicant in this recourse prays for:- "(A) A declaration of the Court that the act and/or decision of the respondents to transfer the applicant from the Third Gymnasium Paphos to Panayia Gymnasium is null and void, contrary to Law and of no legal effect whatsoever. (B) A declaration of the Court that the act and/or decision of the respondents to reject the applicant's objection against his transfer is null and void contrary to Law and of no legal effect whatsoever." Before dealing with the facts and history of this case I find it expedient to state that this case was until the 2nd February, 1988, being dealt with by H.H. Justice Loris: Following his impending retirement, however, the case has been assigned to me whereupon I made on the 24th March, 1988, the following direction in the presence of counsel:- "It is hereby directed with the consent of the parties that this case which was before H.H. Justice Loris will be heard de novo by me and everything filed already will be deemed to have been filed before this Court." After the above direction both counsel stated that they had nothing to add and there upon I reserved judgment. I shall now deal with the history of this case. The recourse was filed on the 23rd November, 1985, and the opposition on the 27th January,
- It was fixed for directions on the,28th January, 1986, on which date directions for the filing of written addresses were given and the case was fixed for further directions on the 22nd April,
- The written address on behalf of the applicant was filed on the 22nd April,
- On this date learned counsel for the respondent applied "for extension of time with a view to filing the written address on behalf of the respondent". She was given tour weeks' time for the purpose and the case was then adjourned for further directions to the.4th June,
- On this date learned counsel for the respondent made the following statement: "The sub judice decision has been revoked by means of a decision of the Commission dated the 23rd April, 1986 following the judgment in Recourse No.813/85, Sotiris Aristides v. The Republic", whereupon learned counsel for the applicant applied for an adjournment in order to contact his client and the case was adjourned for mention to the 7th July,
- On this date learned counsel for the applicant applied for leave to file a supplementary address on the issue of the revocation of the decision and learned counsel for the respondent stated that she would be filing a written address also on that issue too. The Court then adjourned the case for further directions on the 14th October,
- The supplementary address on this issue of revocation, however, had not been filed by the 14th October, 1986, nor by the 16th December, 1986, which was the date that was filed for this purpose and the case was fixed for further directions on the 24th February, 1987 On this latter date, learned counsel for the applicant stated that he would not be filing a supplementary address. Learned counsel for the respondents however stated that she would be filing a written address and learned counsel for the applicant reserved his right to file a reply if necessary. The Court made the following direction: "Case adjourned to the 2nd May, 1987 for further directions. Written address on behalf of the respondent to be filed within four weeks from to-day, Reply, if any, two weeks thereafter." The written address on behalf of the respondent had not been filed by the 2nd May, 1987, nor by the 3rd July, 1987, and the 6th October, 1987, which were the dates on which the case was adjourned for further directions with a view to filing the written address on behalf of the respondent. The address In question was eventually filed on the 2nd December, 1987, and learned counsel for the applicant was given two weeks to file his written address in reply and the case was fixed on the 5th March, 1988, and the address in reply was filed on 23rd March, 1988, and on the 24th March, 1988, the aforementioned direction was made for the hearing de novo of this case by this Court. All three written addresses which have been filed deal exclusively with the merits of this recourse and none of them makes any reference to the revocation of the sub judice act and the consequences or effects of such revocation on this recourse. Regarding this aspect of the matter it should be added that learned counsel for the applicant was on his application granted repeated adjournments in order to file a supplementary written address on the issue of the revocation of the decision. The principles governing the effect of revocation of the sub judice act have been stated by this Court in the recent case of Strakka Limited v. The Republic,
(1988)3 C.L.R. 760.They are adopted and need not be repeated herein. Also in Agrotis v. The Republic
(1983)3 C.L.R. 1397, Triantafyllides.P., in dealing with the same matter made reference to the position applicable in Greece where there does not exist a provision such as the one we have in Cyprus in the form of·Article 146.6 of the Constitution and concluded as follows at p. 1402:- "Of course in Cyprus the principle has been duly followed as in Greece that where an act of limited duration has ceased to exist without having produced before ceasing to be operative any adverse consequences for the applicant the recourse which was made against it is abated because if there are no adverse consequences of such act no need to annul it in view of the provisions of Article 146.6 would arise. (See inter alia Malliotis v. Municipality of Nicosia
(1965)3 C.L.R. p. 75 at pp. 94, 95; Vapheades v. The Greek Communal Chamber
(1966)3 C.L.R. 197, 199, and Andreou v. The Republic
(1975)3 C.L.R. 108, 110." As I held in Strakka case (supra) the burden of proving adverse consequences or damage or detriment or prejudice during the time the sub judice act was in operation lies on the applicant. In this case such a proof has not come from the applicant nor is there any evidence before me from any source whatsoever, of the existence of adverse consequences, damage, detriment or prejudice. Therefore no need for the annulment of the sub judice act arises. In the result I hold that the recourse has been abated due to the disappearance of its subject matter which disappearance was brought about by means of the revocation of the sub judice act and must be dismissed. I might add that this case is distinguishable from Neocleous v. The Republic
(1986)3 C.L.R. 81; Papamichael. v. The Republic
(1986)3 C.L.R. 2038; Evlogimenos v. The Republic
(1986)3 C.L.R. 2042 and Papantoniou v. The Republic
(1988)3 C.L.R. 320 in which Loris J. in dealing with the same situation revocation of the sub judice decision reached the conclusion that the applicant might be entitled to redress under Article 146.6 of the Constitution if successful in the Recourse. The ground for the distinction is this, In all the aforementioned cases contrary to what happened in this case notwithstanding the repeated opportunities which were given to counsel for the applicant, "learned counsel for the applicant argued that the applicant was entitled to judgment on the merits in spite of the revocation in view of his allegation that the administrative act in question had produced results before ceasing to be effective, detrimental to her for which she was entitled to compensation". In the result the recourse is dismissed but in the circumstances there will be no order as to costs. Recourses dismissed. No order as to costs. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο