clr/1965/1965_1_263.pdf

(2)(a)

(4),54

(2)(r)andthe Co-operativeSocietiesRules,98,99, 100, 100(\)and 102—Arbitrationproceedings undersection 53of the Law—Application for certiorari tomove into this Court and quash arbitration decision—Irregularity of proceedings—Control byprerogative orders. This is an application for an order of certiorari, based on Article 155.4 of the Constitution, on section 19of the Courts of Justice Law, 1960, on Order 59, rule 3of the English Rules of Civil Procedure, on section 53

(6)of the Co-operative Societies Law, Cap. 114,andon"the general law and practice of the Courts, to move into this Court and quash a decision made by the Registrar of the Co-operative Credit Societies under the Greek Communal Chamber, on the 14.12.1962 in arbitration proceedings, under section 53of the Co-operative Societies Law, Cap. 114". The application was opposed ontheground that, in making the order complained of, therespondent was acting within his powers under section 53oftheCo-operative Societies Law,Cap. 114 ;andthat nosufficient cause forcertiorari has been shown by the applicant ontheface ofthe record. Held,(I)asregardsjurisdiction : (a) The competence of this Court to grant the remedy sought by the present proceeding has not been questioned here. It emanates from section 9 of the Administration of Justice (Miscellaneous Provisions) Law, No. 33of 1964. And it originates in Article 155.4of the Constitution and section 19ofthe Courts ofJustice Law, No.14of 1960.

(6)Theprinciples guiding the exercise of such jurisdiction have been considered in numerous cases in England (where proceedings of this nature originated) and in some cases in 263 GREEK COMMUNAL . CHAMBER 1963 Dec. 14, 1965 July 26 IOANNIS V . HJI PAPAγι ANNUS V. THE REGISTRAR OF CO-OPERATIVE CREDIT SOCIETIES OF T H E GREEK COMMCNAI. CHAMHER Cyprus dealing with prerogative writs. I shall only refer to the General Council of Medical Education and Registration of the United Kingdom v. Spackman

(1943)2 All E.R. p. 337 ; Hussein Shefik v. The First Limassol Co-operativeSavings Bank Ltd.,

(1953)19,C.L.R. p. 244 ;Lambrianhks v. Mavrides

(1958)23, C.L.R. p. 49 ; and the Application by the Attorney-General of the Republic in the matter of an orderfor maintenance made in the District Court of Larnaca, and Panayiotis Christou, 1962 C.L.R. 129 where certiorari proceedings were discussed and applied in the " exercise of (the High Court'

1. s)'' supervi­ sory jurisdiction and controlling powers over inferior courts " ; and over persons having "' legal authority to determine ques­ tions affecting the rights of citizens and having the duty to act judicially". In Hussein Shefik's case (referred to by both sides) an arbitration-decision under section 53 of the Co-ope­ rative Societies Law (Cap. 114) was the main subject-matter before the Court. (
2. c)Here, there is no doubt that thedispute between theappli­ cant and the Co-operative Society was a matter which properly fell within the statutory arbitration provided in section 53. And, as said in Shefik's case (p. 246 top) such arbitration is subject to control by prerogative orders. (//) on the merits : (
3. a)This application for certiorari is based on thecontention that the record of the arbitration-proceedings which resulted in the Registrar's decision complained of (14.12.62) amply shows that the arbitration was not carried out as required by the statute and the rules applicable thereto: The assessment of the value of the goods, docs not appear to have been done as provided in bye-law 19 and rule 102 ; the arbitration pur­ porting to decide the dispute, does not appear to have been carried out as required by rules 98-100 inclusive : and the procedure followed by the Registrar in dealing with appli­ cant's appeal under sub-section

(4)of section 53, does not appear to have been the procedure prescribed in rule

1. (b) The application, therefore, must succeed; and order for certiorari be made, to bring up and quash the arbitration pro­ ceedings complained of, including the decision of the 14th December.
2. With an order for costs to be taxed in favour of the applicant at the top οι the scale applicable to claims not exceeding the amount of the Registrars award. Order in terms. 264 Cases referred to : General Council of Medical Education and Registration of the United Kingdom v. Spackman

(1943)2 All E.R. p. 337 ; Hussein Shefik v. The First Limassol Co-operative Savings Bank Ltd.

(1953)19, C.L.R. p. 244 ; Lambrianides v. Mavrides

(1958)23, C.L.R. p. 49 ; Application by the Attorney-General of the Republic in the matter of an order for maintenance made in the District Court of Larnaca, and Panayiotis Christou, 1962 C.L.R.

1. 1963 Dec. 14, 1965 July 26 IOANNIS V. Hji PAPAYUNNIS V. THE RCCISTRAR OF CO-OPEHATIVE CREDIT SOCIETIES OF THE GREEK Application for Certiorari. COMMUNAL Application for an order of certiorari to move into the Supreme Court and quash a decision made on the 14th December, 1962, by the Registrar of the Co-operative Credit Societies of the Greek Communal Chamber, under section 53 of the Co-operative Societies Law, Cap.
2. C. Myrianthis, for Ph. Clerides, for applicant. M. Spanos, Counsel of the Republic, for respondent. Cur. adv. vult. T h e facts of the case sufficiently appear in the following judgment delivered by : VASSII.IADES, J.: This is an application for an order cf certiorari " to move into this Court and quash a decision made by the Registrar of the Co-operative Credit Societies under the Greek Communal Chamber, on the 18.1.1963, in arbitration proceedings", under section 53 of the Co-operative Societies Law, Cap. 114,· whereby the applicant was adjudged to pay to a co-operative society in his village, £100 damages for failing to deliver to them his carrots, as required by their bye-laws. T h e date of the decision complained of ts given as the 18.1.63, while according to exhibit 2, the decision was made on 14.12.
3. T h e application is based on Article 155.4 of the Constitution ; on section 19 of the Courts of Justice Law, 1960 ; on Order 59, rule 3 of the English Rules of Civil Procedure ; on section 53

(6)of the Co-operative Societies Law, Cap. 114 ; and on " t h e general law and practice of the Courts "—as learned counsel who prepared the application has put it—whatever that may mean as reference to the law on which the application is based. 265 CHAMBER 1963 Dec. 14, 1965 July 26 T h e proceeding is opposed on the ground that, in making the order complained of, the respondent was acting within his powers under section 53 of the Co-operative Societies Law, Cap. 114 ; and no sufficient cause for certiorari has been shown by the applicant on the face of the record. IOANNIS V . HJI T h e material facts leading to the dispute may be summar­ ised as follows : PAPAYIAN.VIS r. THE REGISTRAR OI J CO-OPERATIVE CREDIT SOCIETIES OF THE CJREEK COMMUNAL CHAM BEΚ A Co-operative Society, formed at Katokopia village under the name Σ υ ν ε ρ γ α τ ι κ ή 'Εταιρεία Δ ι α θ έ σ ε ω ς Φθα­ ρ τ ώ ν Κατωκοττιάς Λτδ., was duly registered in J u n e , 1961, under the Co-operative Societies Law, Cap.

1. A photo­ static copy of the document under which it was registered, containing, as usual, its objects and bye-laws, as well as the signatures of the persons who formed it, was put on the re­ cord by consent, as exhibit
2. This exhibit shows that one of the 163 original signatories was the applicant, whose signed name appears opposite number 161 (exhibit 1, p. 7). T h e first object of this societv was : (α) «Ή ομαδική πώλησις οσπρίων, λαχανικών φρούτων, πατατών και άλλων φθαρτών προϊόντων τών μελών, εν τοις κατωτέρω αναφερομένων ώς τών 'προϊόντων'». Article 18 exhibit 1, on p:tge 2, under the heading « Π α ρ ά δ ο σ ι ς Π ρ ο ϊ ό ν τ ω ν » , provides : — «
3. "Εκαστον μέλος υποχρεούται νά παραδώση εις τήν έταιρείαν δι' όμαδικήν πώλησιν η κατεργασιαν δλην τήν ποσότητα προϊόντων τών παραγομένων ύπ" αύτοΰ ή της συζύγου TO-J καιτών αγάμων τέκνων του, πλην ώς αναφέρεται είς τό άρθρον 22 τών παρόντων κανονισμών και μικρας ποσότητος δια τός οικιακός του άνάγκας, οριζόμενης ύπά της επιτροπείας». Inserted in this article in a rather strange manner, in hand­ writing at the end of page 2, is this : — «καθώς και δλην τήν παραγωγήν του άνήκουσαν εις αυτόν και έν συνεταιρισμώ μετ* άλλων». T h e next article 19, on page 2, reads : — •<I
4. Μέλος τι άπολεΐπον νά παραδώση τήν έλαχίστην τουλά­ χιστον ποσότητα προϊόντων του συμφώνως προς τό άρθρον 18 τών παρόντων κανονισμών υποχρεούται νά πληρώνη εις τήν έταιρείαν διά τό άποθεματικον κεφάλαιον αυτής 50% έπι τής άζίας τών προϊόντων ταόποια άπέλειπε νάπαραδώση. της τοιαύτης αί,ιας οριζόμενης ύπό τής επιτροπείας KGI τοϋ εποπτικού συμβουλίου συμφώνως προς τήν τρέχουσαν τιμήν της άγορΰς κατά τήν περίοδον πού τό μέλος παρέλειψε νά παραδίοση τά προϊόντα του». 266 In the spring of the following year, 1962,a dispute arose between the applicant and the co-operati\e society in question, under the provisions of these articles 18and
5. The society claimed that the applicant produced a considerable quantity of carrots which he failed to declare and deliver to the society forsale, andsorendered himself liable asprovided in Article
6. The appellant rejected the claim, apparently on the allegation that hewasnotoneof their members. The dispute wasreferred to arbitration, presumably under section 53 of the Co-operative Societies Law (Cap. 114) which, as far as material, provides that— Dec 14, 1965 Jul> 26 IOANNIS V HJI PAPAYIANNIS V. THF REGISTRAR o r CO-OPtRATIVF CREDIT SOCIETIES O F THE "

(1)If any dispute touching the business of a registered society arises— GREEK COMMUNAL CHAMBER (b) between a member, past member or person claiming through a member and the society such dispute shall be referred to the Registrar for decision.

(2)The Registrar may, on receipt of a reference under sub-section

(1)— (

1. a)decide thedispute himself ;or (
2. b)refer it for disposal to an arbitrator or arbitrators.

(4)Any party aggrieved by the award of the arbitrator may appeal therefrom to the Registrar as may he prescribed by the Rules.

(5)A decision of the Registrar under sub-section

(2)or an appeal under sub-section

(4)shall be final and shall not be called in question in any civil Court. [The printed text inthis last part of sub-section

(5)refers to sub-section

(3)but apparently that is a printing error] In thecourse of thehearing before me,counsel for therespondent based his argument on the contention that the respondent derived the power to make the order complained of, on section 53 of Cap. 114. It is common ground that he purported to act under that section. 267 1963 Dec. 14, 1965 July 26 lOANN'IS V HJI PAP^YIANMS V THE REGISTRAR OF It is likewise common ground that the record of proceed­ ings which resulted in the order complained of, may be seen in the copies produced at the hearing and put in by consent, as exhibits 2 and 2a. T h e latter shows that on the 3rd of September, 1962, the applicant herein, appeared before " G . Ierides " at Morphou, in the course of matters concern­ ing t h e co-operative society in question, and rejected the claim against him on the ground that he was not one of the co-operative's members. CO-OPERATIVE CREDIT SOCIETIES O F THE GRrEK COMMLNAL C H A MBr R T h e document (exhibit 2a purporting to be a full copy of the record) then reads : « ' Ι ω ά ν ν η ς Β Χ α τ ζ η π α π α γ ι ά ν ν η £510 Ούτος ίσχυρίσΟη δτι επειδή κατά τήν γνώμην του δέν ήιο μέλος τής ώς ανω εταιρείας, δέν έπραξε συμφώνως τοϋ καταστα­ τικού τής εταιρείας και συνεπώς δεν παρέδωσε καρόττα εις τήνΈταιρείαν Ό Γραμματεύςδηλοΐ δτι όεναγόμενοςείναι μέλοςσυμφώνως τοϋ Νόμου, τών θεσμών και τών Ειδικών Κανονισμών τής εταιρείας Εις έρώτησίν μου έάν ό εναγόμενος έδωσε γραπτώς προς τήν έπιτροπείαντής εταιρείας τήν παΰσιν του, ό εναγόμενος απήντησεν αρνητικώς Άψοΰ εξήγησα εις τόν έναγόμενον τϊ αναφέρει ό Νομός σχετικώς με τήν παΰσιν μέλους τινός άπό μίαν συνεργατ'κήν έταιρείαν, εξέδωσα άποφασιν εναντίον του δια το ποσόν τών £510 (Ύπογρ) Γ. Ίερείδης». Μόρφου, 3962 T h i s exhibit It· is ihe record of what purports to have been the arbitration proceeding under section 53

(2)(b) of the Co-t)peiMti\e Societies Law. ' I h e other document, exhibit 2, apparently purports to be the pioc<A.hn r ; on appeal before the Registrar, under sec­ tion SS

(4). T h i s was in Nicosia on the 14th December, 1%2 ! lie Registrar wai dealing with applicant's appeal from the abo\e award ot £510 against the applicant, for failing to dehxer his carrots to the co-operati\e Here the applicant is recorded to have stated that on the /th \ I i \ . 1962 (foui munihs prior to the arbitration proceeding v\ exhibit 2a) · «μέ έ κ ά λ ε σ α ν εις διαιτησίαν επί τ ώ οτι οέν έ δ η λ ω σ α τήν π α ρ ά γ ω γ η ν μου, έ γ ώ τότε τ ο υ ς ε ί π α ότι οέν είμαι μέλος ο : α ν ε ν ε γ ρ ά φ ην δέν ε ί χ α διαβάσει το καταστατίκόν και τότε ό κ. 'Epcoroκρίτοί. |*οϋ εΐπεν έ ; τα^ει αν 6ελης μ π ο ρ ε ί ς να παραιτηθής άπο τώρα» 263 The Registrar thereupon, asked whether after his «καταδίκην» (apparently referring to the proceeding of 7th May) the applicant handed to the committee of the co-operative, his withdrawal in writing. And to a negative reply, the Registrar " τ ο ϋ υποδεικνύει τάς ύττογραφάς του, καΐ ό έφεσείων παραδέχεται οτι υπέγραψε τήν αΐτησιν δι* έγγραφήν τής Συνεργατικής 'Εταιρείας Διαθέσεως Φθαρτών Κατωκοπιας και αναγνωρίζει τήν ύπογραφήν του, δι* έγγραφήν τής Εταιρείας». 1963 Dec. 14, 1965 July 26 IOANNIS V . HJI PAPAYIANNIS V. THE REGISTRAR or CO-OPERATIVE There is, however, a statement on this record (exhibit 2) that after the proceeding on 7.5.62, the applicant was con­ demned by the arbitrator to £$ fine (πρόστιμον)for failing to declare his produce. Was this an " arbitration " in con­ nection with the same case ? The record does not show. It would seem to have been the penalty provided in article 21, at page 3 of exhibit 1. If so, did that confirm appli­ cant's membership ? Or, did it confirm his intention to withdraw from membership ? The question, I think, does not call for an answer in this proceeding. But it tends to show the way matters were being handled in the co-ope­ rative in question. Be that is it may, the record shows that the Registrar finding that the applicant «οΰδεμίαν γρατττήν δήλωσιν έκαμε προς τήν 'Εταιρείαν δια νά διαγραφή από μέλος αυτής», and that «οϊ επίτροποι δηλοϋν οτι έκαλλιέργησε καρόττα και οτι ό ΐδιος εΐχε δηλώσει παραγωγήν καρόττων», came to his decision, which he put it in one word and a figure :— «ΑΠΟΦΑΣΙΣ £100». There is nothing on the record to show that the Registrar exercising his powers under section 53

(4)went into the question whether the award of the arbitrator for the pay­ ment of £510 was made in accordance with article 19 of exhibit 1 (supra) ; or, whether it was made in accordance with the rules governing such arbitrations ; or, to show that in reaching his decision he (the Registrar) had any regard to the provisions in article 19, that applicant's obligation to the co-operative, for the benefit of its reserved capital, was «50% επί τής αξίας τών προϊόντων τά όποιαάπέλειπε νά παραδώση, τής τοιαύτης αξίας οριζόμενης ΰ π ό τ ή ς ε π ι τ ρ ο π ε ί α ς και τοϋ ε π ο π τ ι κ ο ύ σ υ μ ­ β ο υ λ ί ο υ συμφώνως προς τ ή ν τ ρ έ χ ο υ σ α ν τ ι μ ή ν τ ή ς α γ ο ρ ά ς κατά τήν περίοδον που τό μέλος παρέλειψε νά παραδώση τά προϊόντα του». 269 CREDIT SOCIETIES OF THE GREEK COMMUNAL CHAMBER 1963 Dec. 14, 1965 J u l y 26 IOANNIS T h e main issues arising in the dispute in question, were three : — (

1. a)whether the applicant herein, was a member of the co-operative ; V. HJI PAI'AYIANNIS (
2. b)whether he cultivated carrots which he failed to deli­ ver ; and V. THE RI,GISTRAH o r (
3. c)whether the amount payable for such failure, was pro­ perly found. CO-OPERATI\ Ε CREDIT SocihTies OP T H C GREEK COMMUNAL CHAMBER T h e answer to the first question may, I think, be found in the last page of exhibit 1 where the applicant signed as a member against number 161. And must be in the affirma­ tive. T h e applicant was a m e m b e r of this Co-operative. And had not duly withdrawn at the material time. As re­ gards questions (
4. b)and (
5. c)the record does not show the ne­ cessary connection between these questions and t h e Regisstrar's decision under consideration. Section 54

(1)of the Co-operative Societies Law provides for t h e making of Rules " for the purpose of carrying out or giving effect to the principles and provisions of this Law " . And section 54

(2)(r) for rules to " prescribe the mode of appointing an arbitrator and the procedure to be followed in proceedings before the Registrar or such arbi­ trator " . T h e Co-operative Societies Rules were published in 1940 ; and are no*v found in Volume I οι the Subsidiary Legislation of C y p r j s at p . 426. Rule 102 (at p. 443) provides for the disposal of produce through a registered society. And rules 9S, 99 and 100 cover proceedings on a reference of a dispute to the Registrar for decision ; arbitration by the Registrar ; and proceedings before the arbitrator or arbitrators. Rule 100

(1)provides that " the proceedings before the arbitrator or arbitrators shall, as nearly ^s possible be conducted in the same way as proceedings before a Court of Law ''. And rule ltd

(1)provides tli.it " the procedure to be followed by the Registrar in deciding a dispute under the p n n i s i o n s of sec­ tion 53

(2)(a) of the Law or an appeal under the provisions of sub-section

(4)of the same section shall be, as nearly as poe-sible, similar to that followed by a Court of Law in trying a civil case and the provisions of rule 100 shall apply mutatis mutandis· ''. The case for the applicant in the present application fur certioruri, b that the proceedings before t h e arbitrator as well as those before the Registrar, which resulted in 270 the decision complained of (for the payment of j£100 damages) are irregular on the face of them, to the extent of showing that both the arbitrator and the Registrar went beyond their statutory powers in dealing with the matter. Their powers were to deal with the claim of the Co-operative for 50% of the value, of applicant's produce, as provided in article 19 of the bye-laws of this particular Co-operative Society ; and rule 102 of the Co-operative Societies Rules. And in dealing with such claim they (the arbitrator and the Registrar) should act in the manner prescribed in section 53 of the statute and in rules 98—101 inclusive. While their records (exhibit 2 and 2a) show that the said arbitrator and Registrar purported to deal with the claim in question and the dispute thereon, in utter disregard of the requirements of the rules applicable to such matters. The case for the respondent is that section 53 of the statute gives power to the Registrar to deal with the matter. And having acted within such powers, the Registrar made a decision which cannot be questioned in certiorari proceeings. As put by learned counsel for the respondent, the matter turns solely on the question whether the Registrar had jurisdiction or not. I cannot accept this proposition. The powers of the Registrar are derived exclusively from the statute ; and, in my opinion, they can only be exercised as provided in the relative rules. Purporting to exercise such powers, regardless of the requirements of the rules, is, in my view, beyond the power conferred by the statute. The statutory powers of'the Registrar can only be exercised within the fence of the rules. He cannot carry them outside that fence. The competence of this Court to grant the remedy sought by the present proceeding has not been questioned here. It emanates from section 9 of the Administration of Justice (Miscellaneous Provisions) Law, No. 33 of 1964. And it originates in Article 155.4 of the Constitution and section 19 of the Courts of Justice Law, No. 14 of 1960. The principles guiding the exercise of such jurisdiction have been considered in numerous cases in England (where proceedings of this nature originated) and in some cases in Cyprus dealing with prerogative writs. I shall only refer to the General Council of Medical Education and Registration of the United Kingdom v. Spackman

(1943)2 All E.R. p. 337 ; Hussein Shefik v. The First Limassol 271 1963 Dec. 14, 1965 July 26 IOANNIS V . Hji PAIAYIANNIS It. THE REGISTRAR OF CO-OPERATIVE CREDIT SOCIETIES OF THE GREEK COMMUNAL CHAMBER 1963 Dec. 14, 1965 July 26 IOANNIS V . HJI P A PAYIANNIS v. THE REGISTRAR OF CO-OPERATIVE CREDIT SOCIETIES OF THE GREEK COMMUNAL Co-Operative Savings Bank Ltd.,

(1953)19, C.L.R. p. 244 ; Lambrianides v. Mavrides

(1958)23, C.L.R., p. 49 ; and the' Application by the Attorney-General of the Republic in the matter of an order for maintenance made in the District Court of Larnaca, and Panayiotis Christou 1962 C.L.R. 129 where certiorariproceedings were discussed and applied in the " exercise of (the High Court's) supervisory jurisdiction and controlling powers over inferior courts " ; and over persons having " legal authority to determine questions affecting the rights of citizens and having the duty to act judicially". In Hussein Shefik's case (referred to by both sides) an arbitration-decision under section 53 of the Co-operative Societies Law (Cap. 114) was the main subject-matter before the Court. CHAMBER Here, there is no doubt that the dispute between the applicant and the Co-operative Society was a matter which properly fell within the statutory arbitration provided in section 53. And, as said in Shefik's case (p. 246 top) spch arbitration is subject to control by prerogative orders. This application for certiorari is based on the contention that the record of the arbitration-proceedings which resulted in the Registrar's decision complained of (14.12.62) amply shows that the arbitration was not carried out as required by the statute and the rules applicable thereto : The assessment of the value of the goods, does not appear to have been done as provided in bye-law 19 and rule 102 ; the arbitration purporting to decide the dispute, does not appear to have been carried out as required by rules 98-100 inclusive ; and the procedure followed by the Registrar in dealing with applicant's appeal under sub-section

(4)of section 53, does not appear to have been the procedure prescribed in rule

1. The application, therefore, must succeed ; and order for certiorari be made, to bring up and quash the arbitration proceedings complained of, including the decision of the 14th December,
2. With an order for costs to be taxed in favour of the applicant at the top of the scale applicable to claims not exceeding the amount of the Registrar's award. Orders in terms. 272