clr/1970/1970_3_169.pdf

(2)ofj the 'lAdministration of Justice . J ( {Miscellaneous Provisions) Law, I964'(Latv No! 33tof 1964)— L • New' executory decision takenrby the Respondent Council of Ministers in the same matter during pendency,of appeal—Effect of this development on the appeal—The appeal having been deprived of its object must be struck out—No useful analogies 'can be derivedfrom-the practice obtaining in'the Greek Council of State sitting'as'appellate'Court—See also supra. ' Supreme-Court—Jurisdiction of the · Supreme Court in appeals from •judgments of a Judge of this· Court given on a recourse made 'under Article 146 of the Constitution —New executory 169 v. REPUBLIC (COUNCIL OF MINISTERS) 1970 June 23 MILTIADES PAPADOPOULLOS V. REPUBLIC (COUNCIL O F MINISTERS) administrative decision reached in the matter during pendency of such appeal—Effect of this development on the said appeal— See supra. In this case the Appellant appeals against the decision of a Judge of this Court dismissing his recourse, made under Article 146 of the Constitution, against the refusal of the Respondent Council of Ministers to pay him expenses which he incurred in relation to an operation, for aortic valve stenosis, in the United States of America. During the hearing of this appeal, and before this Court had gone into the issue whether or not the course adopted by the trial Judge was correct, the Respondent Council of Ministers reached a new decision in the matter dated July 31, 1969. The point immediately arose as to what should be the fate of this appeal in the circumstances. Striking out the appeal as having been deprived of its object, the Court: Held.

(1). It is plain that the new decision of the Council of Ministers dated July 31, 1969, has been reached after a new examination of the matter on the basis of new factors which were not before them previously; consequently, it is of an executory nature. There has to be examined next the effect of this development on the present appeal proceedings.

(2)Once there has been a new executory administrative decision regarding the claim of the Appellant, the earlier one— (due to which these proceedings have arisen)—has been deprived of its executory nature and can no longer be the subject-matter of a recourse for annulment (see, inter alia, the decisions of the Greek Council of State in cases Nos. 684/55 and 1721/55).

(3)Consequently, this appeal which is made against the judgment of a Judge of this Court regarding the validity of a decision which has, in the meantime, lost its executory nature, must be treated as having been deprived of its object and should, accordingly be struck out.

(4)(a) No useful analogy can be derived in this respect from the practice of the Greek Council of State sitting as an appeal Court; because this Court (the Cyprus Supreme Court) in an appeal of this nature derives its jurisdiction from specific provisions viz. Article 146 of the Constitution and section 11

(2)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law No. 33 of 1964). As we read such provisions 170 we cannot say that we are entitled to do anything more than decide on the correctness of the judgment given by a Judge of this Court under Article 146 regarding the validity of the administrative decision subject-matter of the recourse in which the judgment appealed from was given. 1970 June 23 MILTIADES PAPADOPOULLOS c. REPUBLIC (b) There is nothing which enables us to annul, on appeal, a new executory administrative decision in the same matter, which has been reached pending the appeal. Appealstruck out. Orderfor £40 costs in favour of the Appellant. _* Cases referred to: The Decisions of the Greek Council of State in cases Nos.: 684/55, 1721/55, 1321/49. Appeal. Appeal against the judgment of a Judge of the Supreme Court of Cyprus (Loizou, J.) given on the 22nd November, 1968 (Revisional Jurisdiction Case No. 148/67) whereby a recourse against the decision of the Respondent refusing to reimburse Appellant for medical and other expenses incurred by him for a heart operation in the United States of America, was dismissed. L. Clerides, for the Appellant. S. Georghiades, Senior Counsel of the Republic, for the Respondents. The following judgments were delivered: VASSILIADES, P.: We think that this appeal can be disposed of on a short point, in the circumstances as they stand today. Mr. Justice Triantafyllides will deliver the first judgment, leading to the-result on which the Court is unanimous. TRIANTAFYLLIDES, J.: In this case the Appellant appeals against the decision of a Judge of this Court by virtue of which there was dismissed recourse No. 148/67,* made under Article 146 of the Constitution, by the Appellant—then Applicant— against the refusal of the Respondent to pay him the expenses *Reported in

(1968)3C.L.R.

1. 171 (COUNCIL O F MINISTERS) 1970 June 23 which he incurred in relation to an operation, for aortic valve stenosis, in the United States of America. MlLTlADES The learned trial Judge found that the legal background against which the refusal complained of was decided upon was an erroneous one, but that such refusal ought to be sustained for other legal reasons and, that, therefore, the recourse had to be dismissed in any case. PAPADOPOULLOS V. REPUBLIC (COUNCIL O F MINISTERS) Triantafyllides, J. During the hearing of this appeal, and before this Court had gone into the issue asto whether or not thecourse adopted .by the trial Judge was correct, the matter of the claim of the Appellant for his said expenses was placed once again before the Respondent Council of Ministers, with the consent of both sides and the approval of the Court, asthe Council might be prepared to reconsider the case once it had been found that the legal background against which its original decision was reached was erroneous. As a result the hearing of this appeal was adjourned in the meantime. We have now before us a new decision of the Council of Ministers, which is dated the 31st July, 1969, as well as the relevant submission made to the Council by the Ministry of Health and dated the 24th July,
2. I have perused these two documents, which have to be read together, and had thebenefit of valuable assistance by counsel on both sides, who have both submitted that the new decision of the Council is not merely confirmatory of its earlier one, which was challenged by recourse 148/
3. In my view it is clear that such decision has been reached after a new examination of the matter by the Council, on the basis of new factors, which' were not before it previously, and, that, therefore, it is of an executory nature. There hastobeexamined, next, theeffect ofthis development on the present proceedings: Once there hasbeen taken a newexecutory decision regarding the claim of the Appellant, the earlier one—(due to which these proceedings have arisen)—has been deprived of its executory nature and can no longer be the subject-matter of a recourse for annulment (see, inter alia, the decisions of the Greek Council of State in cases 684/55 and 1721/55). 172 Consequently this appeal, which ismade against the judgment of a Judge ofthis.Court regarding the validity ofa decision which has, in themeantime, lost its executory nature, must be treated as having been deprived ofitsobject andshould, accordingly, be struckout. It hasbeen submitted by counsel for the Appellant that this Court, in dealing with this appeal from a first instance judgment in a revisional' jurisdiction case, should deal not only with thevalidity ofthe decision to which thefirst instance judgment relates, but, also, with thevalidity ofthe aforesaid new decision ofthe Council of Ministers inthe same matter; and, in this connection, counsel contended that such a course could have been adopted bytheCouncil of State.in Greece in dealing on appeal form thedecision,.of a first instance administrative Court. I donot find itnecessary toexamine the extentofthe relevant jurisdiction of the Greek Council of State, because, in my view, this Court, in an appeal of this nature, derives its jurisdiction from specific provisions viz. Article 146andsection 11

(2)of the Administration of Justice (Miscellaneous Provisions) Law, 1964(Law 33/64) and as I read such provisions I cannot saythat weareentitled to do anything more than decide on the correctness of the first instance judgment given bya Judge of this Court, under Article146, regarding the validity ofthe subject-matter ofthe recoursein which that judgment hasbeen given. There isnothing which enables ustoannul, on appeal, a new executory administrative decision inthesame matter, which has been reached pending the appeal andafter thejudgment intherecourse was given. I think that the only order which this Court should make is to have this appeal struck outin view ofthe aforementioned development pending the appeal. VASSILIADES, P.: I agree with the proposed order. The jurisdiction of this Court emanates from Article 146of the Constitution andis defined therein. Theprovisions of this Article have been discussed andinterpreted by'this Court in a number ofcases, none ofwhich lends support tothe extended jurisdiction suggested by counsel for the Appellant at this stage ofthe case in hand. • Totheorder proposed I would only beinclined toadd an order for costs1in favour ofthe Appellant onthemoral merits of his case. I would suggest anorder for£40 against his costs. 173 1970 June 23 MlLTlADES PAPADOPOULLOS V. REPUBLIC (COUNCIL OF MINISTERS) Triantafyllides, J. 1970 TRIANTAFYLLIDES, J.: I agree with the order as to costs. J u n e 23 JOSEPHIDES, J.: I agree and I have nothing to add. MlLTlADES PAPADOPOULLOS STAVRINIDES, J.: I also agree. V. REPUBLIC (COUNCIL O F MINISTERS) HADJIANASTASSIOU, J.: I also agree with the judgment just delivered, but in view of the novelty of the additional point raised by counsel for the Appellant, I would like to express my own views on this issue. During the adjournment of the hearing of this appeal, the Council of Ministers has reconsidered the position of the Appellant and reached its decision which was produced before us with the approval of this Court. The first contention of counsel for the Appellant is that the decision of the Council of Ministers is a new decision, because it was reached as a result of a new enquiry in the light of new material and was, therefore, of an executory nature. 1 am in agreement with counsel that the said decision is not of a confirmatory nature, but of an executory one, because from the material before me, the Council had embarked into a new enquiry after taking into consideration new material. In my view, therefore, in the light of this new decision, the grounds of this appeal have become abortive. The second contention of counsel is that, the jurisdiction of the Supreme Court, in its revisional appeal jurisdiction, is analogous to the jurisdiction exercised by the Greek Council of State, and that it has power to declare null and void a new decision taken by the same organ on the same subject-matter, in the circumstances amounting to an abuse of power. Counsel relies on a decision of the Greek Council of State, No. 1321/

1. With respect to counsel's argument, I find myself unable to agree to such a proposition, because the jurisdiction of the Greek Council of State sitting on appeal from the decisions of the ordinary administrative Courts is derived originally from the provisions of Article 105 of the 1927 Greek Constitution. Then Law 3713 of 1929 was enacted and under section 42 the Court's appellate jurisdiction, known in Greek "ή αίτησις άνεραίσεως" was retained. In the 1952 Greek Constitution, this jurisdiction was again introduced, so that the Greek Council of State has power to declare null and void decisions of the ordinary administrative Courts on the ground that the 174 said decisions were taken contrary to the provisions of any law, or were made in excess or in abuse of powers. Finally, Law 3713/1958 was enacted introducing a unitary system of appellate jurisdiction of the Council of State from the decisions of the administrative Courts, though certain exceptions to such jurisdiction still remain. See Stassinopoulos on the "Law of Administrative Differences" at p. 253 et seq. The position in our case is made clear in paragraph 1of Article 146 of the Constitution, which states that this Court shall have exclusive jurisdiction to adjudicate finally on a recourse involving the alleged unconstitutionality, illegality or excess or abuse of powers vested in such organ or authority or person. Moreover, the powers of this Court are to be found in s. 11 of the Administration of Justice (Miscellaneous Provisions) Law
2. Subsection 2 is in these terms:" Any original jurisdiction vested in the Court under any law in force and any revisional jurisdiction, including jurisdiction on the adjudication of a recourse made against an act or omission of any organ, authority or person exercising executive or administrative authority as being contrary tothelawin force or in excessor abuse of power, may be exercised subject to any Rules of Court, by such Judge or Judges as the Court shall determine: Provided that, subject to any Rules of Court, there shall bean appeal to the Court from hisor their decision." Having given these provisions my best consideration, I regret that I find no such implied power to enable this Court to examine and to declare null and voidthe newdecision reached by the Council of Ministers on the ground that such decision has been taken in circumstances amounting to an abuse of powers. For the reasons I have endeavoured to explain, I would dismiss the appeal, but under the particular circumstances of this case, I am inclined to award an amount of £40 costs towards the costs of the Appellant. VASSILIADES, P.: In the result this appeal is struck, out; The Republic to say Appellant £40 towards costs. Appeal struck out; orderfor costs as above. 175 1970 June 23 MlLTlADES PAPADOPOULLOS V. REPUBLIC (COUNCIL O F MINISTERS) Hadjianastassiou, J.