clr/1978/1978_1_619.pdf

(1978)against this decision of the Director to the District Court of Nicosia under section 80*of Cap. 224. The trial Judge heard only the appeal as against that part of the Director's decision determining the route of access and left the question of the compensation payable to be decided at 5 a later stage, having accepted a relevant submission of counsel of the parties; and proceeded to set aside the decision of the Directormainly on the ground**that appellant 1 has been given excessive and preferential treatment by being allowed to have a passage on a main road through the plots of the respondents 10 and that the owner of a poor stretch of land who wishes to take advantage of the law should not be given such advantages asto bedetrimental to other land owners adjoining hisproperty. Upon appeal against this decision Counsel for the appellant mainly contended that the trial Judge nowhere in hisjudgment 15 refers to any point of the decision of the Director where in his opinion the Director went wrong and he does not even make a finding that the decision of the Director was wrong. The trial Judge did not, therefore, decide the case as an appeal under section 80 of Cap. 224 but as a case in thefirstinstance. 20 Held,

(1)that the Immovable Property (Granting of Access) Rules, 1967, which were made by virtue of the new section 11(A)

(7)of Cap. 224 place the machinery of granting access in the hands of the Director of Lands and Surveys for the accomplishment of this purpose; that under the said rules and 25 in particular under rule 6, the Director after carrying out a local enquiry and after taking into consideration all relevant factors fixes the direction and extent of the route of access; that in case more than one property is considered suitable to serve the requirements of the dominant land, the Director is 30 empowered to make a choice and decide on which property the right of passage will be created; and that in so doing he hastotakeintoaccount thecreation oftheleastpossibledamage, nuisance and inconvenience.

(2)That in determining a right of passage the Director is 35 vested with discretionary powers in determining private rights and he is issuing a decision in the domain of private law; that, * Quoted at p. 626 post. *· See the relevant passages of his judgment at pp. 639-641 post. 620 1 C.L.R. Kafieros & Another v. Theocharous & Others therefore, a District Court in reviewing the decision of the Director should follow the principles on which the Supreme Court in its administrative jurisdiction exercises judicial control over administrative acts or decisions in the domain of public law, with the only difference that the District Court in deciding an appeal under section 80 of Cap. 224, has power to substitute its own discretion for that of the Director whereas in a recourse under Article 146 of the Constitution, the Administrative Court cannot substitute its own discretion for that of the Administration; and that, however, the District, Court will not lightly substitute its own discretion for that of the Director unless there are strong reasons proved by admissible evidence before it militating in that direction, 5 10

(3)That a wide discretion is vested in the Director under the law and the Regulations* made thereunder to determine, in the first instance, as a person best qualified as an expert the direction and extent of a right of passage and the Court in the absence of concrete reasons cannot question his conclusions. 15

(4)That it was on the respondents in this appeal to persuade the trial Court, by adducing oral and documentary evidence, that the decision of the Director complained of was wrong; and that suchevidence islackingand on the contrary the evidence adduced proves that the said decision was a correct one. 20

(5)That the trial Judge instead of making his findings on the evidence adduced as to where the Director went wrong, findings which in the opinion of this Court no Court of law could arrive at, on the facts and circumstances of this case, proceeded in the wrong direction and made the findings which have been referred to earlier in this judgment**, most of which are irrelevant and not based on the evidence adduced; and that, accordingly, the appeals will be allowed and the Director's decision will be restored. (Principles laid down in Georghiou v. HjiPhessa

(1970)1 C.L.R. 58 applied). Appeals allowed. 25 30 35 Observations: Before we conclude our judgment, we must reiterate what has been said time and again by this Court namely, " * Immovable Property (Granting of Access) Rules, 1967. See pp. 639-641 post. 621 Kafieros & Another v. Tfaeocharous & Others

(1978)that the hearing of cases piecemeal isentirely undesirable. The present case is a striking example why this Court has taken the above view. If the question of compensation had been determined by the trial Court together with the question of the validity of the Director's decision, this litigation which started more than six years ago, would today have come to an end. Now the case has to go back to the District Court to be tried on the question of compensation payable. Cases referred to: Georghiou v. Hji Phessa

(1970)1 C.L.R. 58. 5 10 Appeals. Appeals against thejudgment of the District Court of Nicosia (Papadopoulos, S.D.J.) dated the 3rd March, 1976, (Applications Nos. 30/72 and 35/72) whereby, on appeal under section *' 80 of the Immovable Property (Tenure, Registration and Valua- 15 tion) Law, Cap. 224, the decision of the Director of Lands and Surveys, granting to the appellants a right of way, was set aside. L. Clerides, for the appellants. A. Emilianides with Ph. Clerides, for the respondents. 20 Cur. adv. vult. STAVRINIDES J.: Thejudgment of the Court will be delivered by Mr. Justice Malachtos. MALACHTOS J.: In these two appeals, which were heard together, the appellants, who were the respective respondents 25 in Applications Nos. 30/1972 and 35/1972 of the District Court of Nicosia, which were filed by way of appeal under section 80 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, complain against the judgment of the trial Judge setting aside the decision of the Director of Lands 30 and Surveys, by which a right of way was granted to them. The relevant facts, to which we shall refer in detail in view of the nature of the case, are the following: The first appellant, Georghios Chr. Kafieros, of Nicosia, is the owner of a piece of land situated at Ayios Dhometios village, 35 in the Nicosia District, under plot 129 of Block B. In view of the fact that this plot has no access to a public road, this appel622 1 CX.R. Kafieros & Another v. Tbeocharous & Others Malachtos J. lant applied to the D.L.O.under section 11(A) of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224, as amended by section 3 of Law 10/66, for a right of passage through plot 132, which is situated to the north eastern side of 5 plot 129, and which on its eastern side abuts on Stelios Mavrommatis Street and is registered in the name of Myrianthi Stavri of Ayios Dhometios, respondent No. 2 in these appeals. This section reads as follows: 10 15 " 11Α.—

(1)Notwithstanding the provisions of this Law, if any immovable property is, for any reason, in such a way enclaved as to be lacking the necessary access to a public road, or if the existing access is inadequate for its proper use, development or utilization, the owner of such immovable property shall be entitled to claim an access over the adjacent immovable properties on payment of a reasonable compensation. For the purposes of this sub-section 'access' includes the right of conducting water through channels or pipes or any other suitable means. 20 25 30 35

(2)The route of the access and the extent of the right to the use thereof, as well as the compensation payable shall be determined by the Director after previous notice to all interested parties.

(3)There shall be no obligation of the neighbours to provide an access if the communication of the immovable property to the public road has ceased through a voluntary act or omission of the owner thereof.

(4)If, as a result of the alienation ·of a part of the immovable property, the communication of the part alienated or of the remainder to the public road has been cut off, the owner of the part through which thecommuni­ cation had heretobefore been made shall be obliged to provide an access. The alienation of one or more im­ movable properties belonging to the same owner shall be assimilated to the alienation of a part.

(5)If, as a result of the opening of a new access or for any other reason, the need for the access established 623 Malachtos J. Kafieros & Another v. Theocharous & Others

(1978)has ceased, the owner of the immovable property over which it is exercised shall be entitled to claim that it be abolished on his returning the compensation paid.

(6)An accessgranted underthissection shallbedeemed to be a right, easement or advantage acquired under the provisions of section 11of this Law, and theprovisions of this Law shall apply to any such access. 5

(7)The Council of Ministers may make regulations regulating any matter requiring to be regulated for the better application of this section and, in particular, the 10 procedure to be followed for the purposes thereof: Provided that regulations made under this sub-section shall be laid before the House of Representatives which shall withinfifteendays of such layingdecide thereon. In the event of approval or amendment of the regulations so 15 laid, they shall come into operation as approved by the House of Representatives.

(8)The provisions of this section shall not apply to state land of any nature, without a specific decision of the Council of Ministers in this respect and on such terms and conditions as may be provided in the decision." 20 As it appears from the relevant D.L.O. file, exhibit 3, at the local enquiry whichwascarried out on 23/7/68,it was found out that other immovable properties were also suitable for a passage and so by virtue of regulation 6

(2)of the Immovable Property (Grant of Access) Rules, 1967, the appellant was 25 required by letter of the same day, under regulation 3, to serve a notice and plan on the owner of plot 458 of Block A, which is situated to the western side of plot 129 and abuts on the blind alley, namely, Marathonos Street. Upon receiving the above letter this appellant wrote a letter to the Director, 30 dated 23/8/68, whereby, among other things, he explained his difficulties andtheefforts hemadesince 1961toobtainapassage for his enclaved piece of land. In the said letter he referred to the fact that plot 130(now plot 1926), which is situated to the south eastern side of his property and belongs to Anastasis 35 Ttoouli Krashias was also an enclaved piece of land and the owner wasbound toapply for thesameright ofpassagethrough plot

1. He also referred toAction No.695/61ofthe District 624 1 C.L.R. Kafieros & Another v. Theocharous & Others Malachtos J. Court of Nicosia between Antigont Sawa Kontopoullou of Ayios Dhometios, the then owner of plot 131,(now plot 1927) and himself, in which a judgment by consent was issued on the 23rd November, 1962, by which he was granted a right of 5 passage of 3 ft. in width along the northern boundary line of plots 130 and
2. This plot 131 is situated to the eastern side of plot 130 and to the southern side of plot 132 and its eastern boundary line abuts on Stelios Mavrommatis Street. He was, however, unable to obtain a copy of judgment due to 10 the existing political situation at that time. He was also informing the Director that a copy of judgment was filed in a previous D.L.O. application made by him on the same subject matter under No. 1926/
3. By letter dated 26/8/68 this appellant was informed by the 15 D.L.O. that unless he complied with the previous letter of the 23rd July, 1968, his application was to be considered as abandoned. No further steps were taken to the direction indicated by the D.L.O. and so the application was considered as abandoned and the relevant fees were refunded to the appellant on 20 6/10/
4. By a new application No. 524/1970, this appellant applied to the D.L.O. for a right of passage through plots 132, 130and 131 of Block B. Before his application was considered, a second application was filed under No. 5809/1971 by Iacovos Ghoghakis, the appellant in Appeal No. 5560, representing the 25 Registrar of the District Court of Nicosia, as administrator of the Estate of the deceased Anastasis Ttoouli Krashias, owner of plot 130, for a right of passage through plots 132 and
5. Plots 130 and 131 by application No. 1248/1966, were renumbered as plots 1926 and 1927 respectively. After the filing of 30 application No. 5809/1971, the D.L.O. fixed it to be considered together with application 524/1970, on 21st January, 1972, at 9 a.m. The D.L.O. clerk, Christodoulos Markides, who was nominated by the D.L.O. to consider these applications, called a valuer of the D.L.O., namely, Stelios Vassiliou, to assist him 35 for the evaluation of the proposed right of passage. The valuer was asked to make an assessment of a passage of 5 ft. wide along the southern side of plot 132and also 2ft. wide along the northern side of plots 130 and 131, now plots 1926 and 1927 respectively. The reason for asking for only 2 ft. from plot 40 1927 was because by virtue of the consent judgment of the District Court of Nicosia in Action No. 695/61, plot 129 enjoyed 625 Malachtos J. Kafieros &Another τ.Theocharous&Others

(1978)a right of passage of 3 ft wide through plot

1. In themean­ time, the owner of plot 1926 volunteered to concede another 2 ft. from his property in favour of the owner of plot
2. In view of the above the D.L.O. clerk decided to fix a right of passage in favour of plot 129 as well as in favour of plot 1926 5 as follows: 5 ft. from the southern boundary line of plot 132 and 2 ft. from the northern boundary line of plot
3. Before this decision was reached the relevant letter to the District Officer of Nicosia was sent on 6/4/72, who agreed to this course by a 10 letter dated 1/7/
4. As against the above decision of the D.L.O. Androulla Andreou Theocharous, and her mother Antigoni Sawa Kontopoullou, owners at the time of plot 131 (now plot 1927) filed by way of appeal application No. 30/72 in the District Court 15 of Nicosia against George Kafieros and Iacovos Ghoghakis on 27/7/72 under section 80 of Cap.
5. A similar application No. 35/72 was filed by Andreas Christofides of AyiosDhometios as representative of Myrianthi Stavri, owner of plot 132, against the same respondents on 12/8/
6. 20 Section 80 of Cap. 224 reads as follows: " Any person aggrievea by any order, notice or decision of the Director made, given or taken under the provisions of this Law may, within thirty days from the date of the communication to him of such order, notice or decision, 25 appeal to the Court and the Court may make such order thereon as may be just but, save by way of appeal as provided in this section, no Court shall entertain any action or proceeding on any matter in respect of which the Director is empowered to act under the provisions of this 30 Law. Provided that the Court may, if satisfied that owing to the absence from the Colony, sickness or other reasonable cause the person aggrieved was prevented from appealing within the period of thirty days, extend the time within 35 which an appeal may be made under such terms and con­ ditions as it may think fit." The District Lands Officer on being served with an office copy of the applications as provided in rule 5

(3)of the Immo- 626 1 C.L.R. Kafieros & Another τ. Theocharous & Others Malachtos J. vable Property (Tenure, Registration and Valuation) Rules, 1956 forwarded to the Court a statement of his reasons dated 16.8.72 for the decision appealed against as provided by rule 6

(2)and

(3)of the said Rules. 5 10 15 This reasoned decision of the Director which was eventually made exhibit No. 1 is as follows:" Οί Γεώργιος Xp. Καφιέρου,οδός Διονυσίου 15, Λευκωσία καΐ 'Ιάκωβος Γωγάκη ώς αντιπρόσωπος τοΰ Πρωτοκολλητοϋ τοΰ 'Επαρχιακού Δικαστηρίου Λευκωσίας ώς διαχειριστοΰ της περιουσίας τοΰ αποβιώσαντος 'Ανάσταση Ττοουλή Κρασιά, 'Ηρακλέους 22, Στρόβολος. ΟΙ καθ' ών ή αίτησις είς τήν παροΰσαν έφεσιν είναι οί εγγεγραμμένοι ίδιοκτήται τών ακινήτων Οπό τεμάχια 129 και 1926 τοΰ Συμπλέγματος Β, τοΰ Φύλλου/Σχεδίου ΧΧΙ/45, Ε., Ι! τοΰ χωρίου "Αγιος Δομέτιος ώς ακολούθως:(α) Γεώργιος Χρ. Καφιέρος:Ίδιοκτήτης τοΰ τεμ. 129, τοΰ Συμπλέγμ. Β, τοΰ Φ/Σχεδ. ΧΧΙ/45, Ε.2, τοΰ χωρίου "Αγιος Δομέτιος δυνάμει έγγραφης Β 136/14.9.60, το δλον μερίδιον. 20 25 30 35 (β) Ιάκωβος Γωγάκης ώς αντιπρόσωπος τοΰ Πρωτο­ κολλητοϋ τοΰ 'Επαρχιακού Δικαστηρίου Λευκωσίας ώς διαχειριστοΰ της περιουσίας τοΰ αποβιώσαντος 'Ανάσταση Ττοουλή Κρασιά:Ιδιοκτήτης τοΰ τεμ. 1926 τοΰ Συμπλέγματος Β τοΰ Φ/Σχεδίου ΧΧΙ/45 Ε.ΙΙ, τοΰ Χωρίου "Αγιος Δομέτιος δυνάμει έγγραφης Β2145/9.10.71, το δλον μερίδιον. 2. Οί καθ'ών ή αίτησις, ώς Ιδιοκτήται περίκλειστων, ήτοι έστερημένων, οίασδήποτε διόδου προς τον δημόσιον δρόμον άπετάθησαν συμφώνως αιτήσεως των ημερομηνίας 3.2.1970 καί 17.11.71 αντιστοίχως προς το Έπαρχιακόν Κτηματολογικόν Γραφεϊον Λευκωσίας δυνάμει τοΰ άρθρου 1 ΙΑ τοΰ περί 'Ακινήτου 'Ιδιοκτησίας (Διακατοχή, έγγραφη και έκτίμησις) Νόμου Κεφ. 224, και Νόμος 3/60, 78/65 καί 10/66, δια τήν άπόκτησιν διόδου ό μέν πρώτος διά τών ακινήτων, (ι) τεμάχιον 132, τοΰ συμπλέγματος Β, τοΰ Φ/Σχεδ. ΧΧΙ/45, Ε.2, έπ' ονόματι της Μυριάνθης Σταυρή δυνάμει εγγραφής Β 139/2.7.49, το δλον μερίδιον. 627 Malachtos J. Kafieros & Another τ. Theocharous & Others

(1978)(η) τεμάχιον 1927 τοΰ συμπλέγματος Β, τοΰ Φ/Σχεδίου ΧΧΙ/45, Ε.2 έπ' ονόματι τ ώ ν : Άνδρουλλας 'Ανδρέου Α. Θεοχάρους καί 'Αντιγό­ νης Σάββα Κοντοπούλλου άνά έν μερίδιον, έκαστη, δυνάμει έγγραφης Β2146/19.10.71 καί (ιιι) τεμάχιον 1926 τοΰ Συμπλέγματος Β, τοΰ Φ/Σχεδ. ΧΧΙ/45, Ε.2, έπ* ονόματι τών Ιακώβου Γωγάκη ώς αντιπροσώπου τοΰ Πρωτοκολλητοϋ τοΰ 'Επαρχια­ κού Δικαστηρίου Λευκωσίας, ώς διαχειριστοΰ της περιουσίας τοΰ αποβιώσαντος 'Ανάσταση Ττοουλή Κρασιά δυνάμει έγγραφης Β2145/19.10.71 ό δε δεύτερος δια τών ακινήτων, (ι) τεμάχιον 132 τού Φ/Σχεδ. ΧΧΙ/45, Ε.2 τοΰ Συμπλέγματος Β, έπ' ονόματι της Μυριάνθης Σταυρή, τό όλον μερίδιον δυνάμει έγγραφης Β 139/2.7.49 και (ιι) τεμάχιον 1927 τοΰ Συμπλέγματος Β, τοΰ Φ/ Σχεδ. ΧΧΙ/45, Ε.2 έπ' ονόματι της Άνδρούλλας 'Ανδρέου Α. Θεοχάρους και 'Αντιγόνης Σάββα Κοντοπούλλου άνά εν δεύτερον μερίδιον έκαστη, δυνάμει έγγραφης Β 2146/19.10.

2. Τό Έπαρχιακόν Κτηματολόγιον, άφοΰ Ιμελέτησεν τάς υποβληθείσας αιτήσεις και άφοΰ ίκανοποιήθη ότι οί καθ' ών ή αίτησις ήκολουθησαν τήν Οπό τοΰ Νόμου προνοουμένην διαδικασιαν προέβη εϊς τήν έπιθεώρησιν επηρεαζόμενων ακινήτων τήν 21.1.1972 Οπότοΰ Χρ. Μαρκίδη, Κτηματολόγου 1ης Τάξεως συνοδευόμενου υπό τοΰ Στέλιου Βασιλείου Κτη­ ματολόγου 2ας τάξεως ειδικού έπΐ τών εκτιμήσεων, άφοΰ προηγουμένως επέδωσε είδοποίησιν προς όλα τά ενδιαφερό­ μενα π ρ ό σ ω π α δυνάμει τοΰ κανονισμού
4. Ό κτηματολόγος άφοΰ έμελέτησε πάντα τά σχετικά στοιχεία και γεγονότα καθώρισε τήν κατεύθυνσιν της διόδου τήν εκτασιν τοΰ προς χρησιν αυτών δικαιώματος τών απο­ κτώντων μερών και τήν ύ π ' αυτών καταβλητέανάποζημίωσιν. Ό Κτηματολόγος κατά τήν μελέτην τών σχετικών στοιχείων καί γεγονότων και έπΐ τ ω σκοπώ όπως προκληθή ή μικρό­ τερα δυνατή ζημία, όχληρία ή ταλαιπωρία κατέληϋεν είς τό συμπέρασμα ότι, μή υπαρχόντων άλλου ή άλλων ακινή­ των διά τήν δημιουργιαν διόδου έπ' αυτών ή επιλεγείσα δίοδος ήτο ή μόνη κατάλληλος. 628 5 10 15 20 25 30 35 40 1 C.L.R. Kafieros & Another r. Theocharous & Others
5. Περιγραφή Διόδου καί επηρεαζόμενων Malachtos J. 'Ακινήτων:- Τεμάχιον 132 (μέρος) 5 Αύτη είναι μία στενή λωρίς γης πλάτους πέντε καί μήκους εκατόν ποδών ήτοι εκτάσεως 0-0-500 τ . π . καί αποτελεί μέρος της Νοτίας πλευράς ενός οίκοπέδου εκτάσεως 0-2-
6. Τεμάχιον 1926 (μέρος) 10 Αύτη είναι μία στενή λωρϊς γης πλάτους δύο καί μήκους σαράντα ποδών ήτοι εκτάσεως 0-0-80 τ . π . καί αποτελεί μέρος της βορείας πλευράς χωραφιού άνευ δρόμου (τόπου) εκτάσεως 0-0-3400 τ . π . Τεμάχιον 1927 (μέρος) 15 Αύτη είναι μία στενή λωρίς γης πλάτους πέντε καί μήκους έΕήντα ποδών, ήτοι εκτάσεως 0-0-300 τ . π . καί αποτελεί μέρος της βορείας πλευράς τής αυλής διπλοκατοικίας τό οϊκόπεδον της οποίας έχει εκτασιν 0-1-1200 τ . π .
7. "Αλλαι λεπτομέρειαι (ι) Θέσις κτημάτων. Ευρίσκονται περίπου 300 πόδια βορείως τής εκκλησίας Ά γ . Γεωργίου είς "Αγιον Δομέτιον. 20 25 30 35 (ιι) Ό ιδιοκτήτης τοΰ κτήματος ύπό τεμ. 129 συμφώνως τού τίτλου Β 136 "Αγιος Δομέτιος £χει δικαίωμα διαβάσεως πλάτους τριών ποδών κατά μήκος τής βορείας πλευράς τοΰ τεμ.
8. (ιιι) Προοπτικά! αξιοποιήσεως. Τά επηρεαζόμενα έκ τής διόδου κτήματα είναι κατάλληλα δια κατοικίας τής μεσαίας τάΕεως καί άνω, διότι ή περιοχή αύτη θεωρείται ά π ό τάς καλυτέρας τής πρωτευούσης. 'Επίσης είς τήν περιοχήν δεν παρατηρείται άί\οποίησις κτημάτων πέραν τών δύο ορόφων. (ιν) Επιβλαβής έπίδρασις. 'Επειδή τό μέρος τό όποιον θά χρησιμοποιείται ώς δίοδος δεν θά άφαιρεθή ά π ό τους τίτλους Ιδιοκτησίας άλλα θά επακόλουθη νά ευρίσκεται υπό τήν κυριότητα τών ιδιοκτητών του, και επειδή θά καταβληθή είς τους άνω ΐδιοκτήτας άποζημίωσις "full value" δεν υπολογίζω επιβλαβή έπίδρασιν έπΐ τού υπολοίπου μέρους τών εκτιμημέ­ νων κτημάτων. 629 Malachtos J. Kafieros & Another v. Theocharous & Others

(1978)7. Μέθοδος 'Εκτιμήσεως. 'Εχρησιμοποιήθη ή δι* απευ­ θείας συγκρίσεως μέθοδος εκτιμήσεως. 8. Συγκριτικά! πωλήσεις. (ι) Πώλησις οίκσττέδου εκτάσεως 0-1-2100 ύπό τεμά­ χιον 1428, Συμπλ. Β, "Αγιος Δομέτιος έπωλήθη τήν 27.11.71 αντί £5300.- ήτοι προς 930 μίλς τό τ . π . 5 (ιι) ττώλησις οϊκοπέδου εκτάσεως 0-1-2400 Οπό τεμ. 380 συμπλ. Β, "Αγ. Δομέτιος, έπωλήθη τήν 5.5.71 αντί £5,000.- ήτοι προς 833 μίλς τό τ . π . δυνάμει Π631/71 Π.Λ. 10 (ιιι) πώλησις οϊκοπέδου εκτάσεως 0-1-2100 ύπό τεμ. 1865, συμπλ. Β "Αγ. Δομέτιος έπωλήθη τήν 7.12.70 δυνάμει Π.274/71 Π.Λ. £4,000.- προς 702 μίλς τό τ.π. 9. Έκτίμησις. 15 "Εχοντας ΰ π ' όψιν τάς πωλήσεις (1-3) καί Ιδίως τήν π ώ λησιν (Ι) τήν θέσιν καί σχήμα τών επηρεαζόμενων, έκ της διόδου κτημάτων, υπολογίζω ότι ή ά£ία τοΰ εκτιμημένου μέρους είναι πέριΣ τ ά 1000 μίλς τ ό τ . π . π ρ ώ τ η ζώνη. Ούτω:- 20 (ι) Τεμάχιον 132 'Επηρεαζόμενη εκτασις 0-0-500 τ . π . Ζώνη Α. 300 τ.π. προς 1000 μίλς τό τ . π . £300 Ζώνη Β. 200 τ.π. προς 500 μίλς τό τ . π . £100 Όλικόν 25 £400 (ιι) Τεμάχιον 1927 Επηρεαζόμενη έκτασις 0-0-300 τ . π . προς 1000 μίλς τ ό τ . π . £300 ΈΕοδα τοποθετήσεως περιφράγματος 20 μετρ. προς £2.- τό μετρ. £ 40 Όλικόν 630 £340 30 1 C.L.R. Kafieros &Anotherv. Theocharous &Others Malachtos J. (

1. in)Τεμάχιον 1926 'Επηρεαζόμενη εκτασις0-0-80τ.π. προς 320 μίλς τό τ.π. £ 25.600 Λέγε όλικόν 5 10 15 20 £ 25 10. Τό πόρισμα τής διε£αχθείσης έρεύνηςέγνωστοποιήθη προς τά ενδιαφερόμενα μέρη δια τού τύπου Ν286 ημερομη­ νίας 17.7.1972 μετά σχετικού σχεδιαγράμματος. (ιι) Έν όψει τών δσων εξετέθησαν ανωτέρω είμαι της γνώμης ότι ό γενόμενος καθορισμόςτης διευθύνσεως τής διόδου καί ή άποφασισθεϊσα καταβλητέα άποζημίωσις δέν παραβλάπτουν καθ* οιονδήποτε τρό­ πον τά συμφέροντα τών αΐτητριών." ("Georghios Chr. Kafieros, Dionysiou Str. No. 15, Nicosia and Iacovos Gogakis representing the Registrar (District Court Nicosia, as administrator of the estate of the deceased Anastasis Ttoouli Krasias, Eracleous Str. No. 22 Strovolos. The respondents in this appeal are the registered owners of plots 129 and 1926 of Block B, Sheet/plan XXI/45, Ε.ΪΙ of Ayios Dhometios village as follows: (
2. a)Georghios Chr. Kafieros: Owner of plot 129, Block B, Sheet/Plan XXI/45. E.2 of Ayios Dhometios village by virtue of registration Β 136/14.9.60, the whole share. 25 ^^ (
3. b)Iacovos Gogakis representing the Registrar District Court Nicosia as administrator of the estate of the deceased Anastasis Ttoouli Krasias:Owner of plot 1926, Block, B, Sheet/Plan XXI/45 E.II of Ayios Dhometios village by virtue of registration Β. 145/9.10.71, the whole share. 30 35 2. The respondents as owners of enclaved lands, that is which lack any access to the public road, applied, by means of applications dated 3.2.1970 and 17.11.1971, respectively, to the District Lands Office Nicosia by virtue of section 11A of the Immovable Property (Tenure Registration and\ Valuation) Law, Cap. 224, and Laws 3/60, 78/65 and 10/66, for the grant of access, the first one through 631 Malachtos J. Kafieros &Anotherv.Theocharous&Others

(1978)(

1. i)plot 132, of Block B, Sheet/Plan, XXI/45. E.2, in the name of Myrianthi Stavri by virtue of regi­ stration B. 139/2.7.49, the whole share. (
2. ii)plot 1927, of Block B, Sheet/Plan XXI/45. E.2 in the name of: Androulla Andreou A. Theocharous and Antigoni Sawa Kontopoullou a share each, by virtue of registration B. 2146/19.10.71 and (iii) plot 1926, of Block B, Sheet/Plan XXI/45. E.2, in the name of Iacovos Gogakis, representing the 10 Registrar District Court Nicosia, as administrator of the estate of the deceased Anastasis Ttoouli Krasias, by virtue of registration Β. 2145/19.10.71 and the second respondent through (
3. i)plot 132, sheet/Plan XXI/45. E.2, of Block B, 15 in the name of Myrianthi Stavri, by virtue of registration B. 139/2.7.49, the whole share, and (
4. ii)plot 1927, of Block B, Sheet/Plan XXI/45. E.2 in the name of Androulla Andreou A. Theo- 20 charous and Antigoni Sawa Kontopoullou, by virtue of registration B. 2146/19.10.71, one half share each. 3. The District Lands Office, having studied the appli­ cations and upon being satisfied that the respondents have 25 followed the procedure provided by Law, had the lands affected to be inspected on the 21.1.1972 by Chr. Markides, Lands Officer 1st Grade, who was accompanied by Stelios Vassiliou, Lands Officer 2nd Grade, a valuation expert, after serving a notice on all interested persons under rule 5. 30 4. The Lands Officer having considered all relevant elements and facts determined the route, the extent of the right of passage to be used by the acquiring parties and the compensation payable by them. The Land Officer in the the course of considering the relevant elements and facts 35 and for the purpose of causing the least possible damage, nuisance or inconvenience came to the conclusion that in 632 5 1 CX.R. Kafieros & Another v.Theocharous & Others Malachtos J. the absence of another or other plots for the creation of a route of access on them the selected route was the only suitable one. 5. Description of route andproperties affected: 5 Plot 132 (part) This is a narrow strip of land 5 feet wide and 100 feet long that is of an extent of 0-0-500 square feet which forms part of thesouthern sideofa building siteof0-2-0 in extent. Plot 1926 (part) 10 This is a narrow strip of land 2 feet wide.and-forty feet long that is of an extent of 0-0-80 square feet which forms part of the northern side of afieldwithout a road (location) of an extent of 0-0-3400 square feet. Plot 1927 (part) 15 20 This is a narrow strip of land 5 feet wide and sixty feet long, that is of an extent of 0-O-300 square feet which forms part of the northern side of the yard of a two-flat house the site of which has an area of 0-1-1200 square feet. 6. Otherdetails (
5. i)Location of Lands. They are situated at about 300 feet to the North of Ayios Georghios Church at Ayios Dhometios. 25 30 35 (
6. ii)The owner of plot 129 has, in accordance with title deed B. 136, Ayios Dhometios, a right of way, 3 feet wide, along the northern side of plot 1926. (iii) Prospects of development. The lands affected by the route are suitable for dwelling houses for the middle class and upwards, because the area is considered as one of the best of Nicosia. Also in the area there does not exist development of Lands beyond two storeys. (
7. iv)Injurious affection. As the part which will be used as route will not be deducted from the title deeds but it will continue to be under the owner633 MalachtosJ. Kafieros & Another v.Theocharous &Others

(1978)ship of its owners and because a full value compensation will be paid to the owners no injurious affection is estimated in the remaining part of the lands under assessment. 7. Method of Assessment 5 The direct comparison method was used. 8. Comparable Sales (

1. i)Sale of building side of 0-1-2100 in extent, plot 1428, Block B, Ayios Dhometios; it was sold on 27.11.71 at £5300 that is at 930 mils per square 10 foot. (
2. ii)Sale of building site of 0-1-2400 in extent plot 380, Block B, Ayios Dhometios; it was sold on 5.5.71 at £5,000 that is at 833 mils per square foot by virtue of S631/71. 15 (iii) Sale of building site of 0-1-2100 in extent, plot 1865, Block B, Ayios Dhometios; it was sold on 7.12.70 by virtue of S. 274/71 at £4,000 at 702 mils per square foot. 9. Assessment. 20 Bearing in mind sales (1-3) and particularly sale (I) the location and shape of the lands affected by the route, I assess the value of the part affected at about 1000mils per square foot, first zone. Therefore: 25 (
3. i)•Plot 132 Area affected 0-0-500 square feet Zone A. 300 square feet at 100 mils per square foot £300 Zone B.200 square feet at 500mils per square foot £100 Total £400 (
4. ii)Plot 1927 Area affected 0-0-300 square feet at 1000 mils per square foot 634 30 £300 35 1 C.L.R. Kafieros &Another τ.Theocharous&Others Costs of placing fence 20 metres at £2 per metre Total 5 (iii) Plot 1926 Area affected 0-0-80 square feet at 320 mils per square foot MalachtosJ. £ 40 £340 £ 25.600 Say total £ 25. 10 15 20 25 30 35 10. The finding of the inquiry which has been carried out was communicated to the interested persons by means of Form No. 285 dated 17.7.1972 together with a relevant plan. (
5. ii)In view of what has been stated above I am of the opinion that the route which has been deter­ mined and the compensation which has been assessed do not in any way affect the interests of the applicants.") As it appears from the record of proceedings, the two appli­ cations came together before the trial Court for hearing on 28/4/75, when by consent of all concerned they were adjourned to the 7th June, 1975. On that day the hearing of both appli­ cations had to be adjourned again as Myrianthi Stavri, the applicant in Application No. 35/1972, died the day before and legal steps had to be taken for the change of the parties. Again both applications came before the trial Court for hearing on 30/10/75, when counsel appearing for the parties made the following joint statement: " From the reasoned decision of the D.L.O. as well as the plan for the proposed passage in favour of the respondents it appears that the position as appearing on the plan is different totheexisting situation in that inplot 1927 of Block 'B' certain buildings have been erected in the meantime after the necessary permit of the authorities. These facts necessitate a re-examination and review by the D.L.O. and the parties to this appeal agree that the D.L.O. officers who prepared the original reasoned decision should pre­ pare a new report which they will file in Court on or before the 19.12.75 and deliver to the advocates and the parties 635 Malachtos J. Kafieros & Another v. Theocharous & Others

(1978)copies thereof. It is clearly understood that they reserve their respective rights and they are not bound by the new report of the D.L.O.." The applications then were fixed for mention on 19/12/75 and in the meantime the new " r e p o r t " dated 26th November, 1975, with the relevant copies of the D.L.O. plan indicating the proposed new route was filed in Court on 28/11/75. This report which was made exhibit 2 is as follows:- 5 " 'Αναφέρομαι έπΐ της ώς άνω αίτήσεως τοΰ Δικαστηρίου ήτις άφορα τό έν έπικεφαλίδι θέμα, καθώς επίσης καί τοΰ 10 Θέματος της αποδοχής ύπό τοΰ δικαστηρίου της ομοφώνου είσηγήσεως τών δικηγόρων τών διαδίκων όπως διετάχθη νέα έρευνα έπΐ τοΰ σκοπού εξευρέσεως νέας πιθανής διόδου, Ικανοποιούσης τους σκοπούς καί άνάγκας της ύπό άναφοράν αίτήσεως καί επιθυμώ νά πληροφορήσω υμάς τ ά κάτωθι:15 Ύ π ό τό <ρώς της νέας έρευνης και έν όψει τών όσων εξετέ­ θησαν έπΐ δικαστηρίω κατά τήν άκρόασιν της άνω αίτήσεως, τήν 30ην 'Οκτωβρίου, 1975, δτι δηλαδή έπΐ τοΰ τεμ. 1927 τοΰ συμπλέγματος 'Β', άνηγέρθησαν νέαι οίκοδομαί 'Πράγμα π ο υ διεπιστωθη και έπί τόπου* κατόπιν σχετικής αδείας, εκδοθείσης ύ π ό τής αρμοδίας 'Αρχής καί κατόπιν τής ύπό τοΰ Κτηματολογίου εκδοθείσης αποφάσεως είσηγοϋμαι ό π ω ς : (I) Ύποδειχθή προς τους αίτητάς δτι έπΐ τοΰ παρόντος και έπΐ τ ω σκοπιώ όπως προκληθη ή μικρότερα δυνατή ζημία όχληρία ή ταλαιπωρία, απαιτήσουν δικαίωμα διαβάσεως διά τών τεμαχίων 472, 11, 12 τοΰ Συμπλέγματος Ά ' και τοΰ τεμ. 129 τοΰ συμ­ C πλέγματος B' τοΰ χωρίου Ά γ . Δομετίου και (II) όπως οί αΐτηταΐ δυνάμει τοΰ κανονισμού 6

(2)τών περί 'Ακινήτου 'Ιδιοκτησίας (Παροχή διόδων Κανόνισμών) εντός 60 ήμερων άπό τής ημερομηνίας της ώρισθησομένης ύπό τού Δικαστηρίου, επιδώσουν προς τους ίδιοκτήτας τών ύπό άναφοράν τεμαχίων τήν έν τ ω κανονισμώ 3 προυοουμένην είδοποίησιν (τύπου Ν. 283) μετά τοΰ τοπογραφικού σχεδίου. Προς τούτοις σας επισυνάπτω σχέδια είς τετραπλοΰν έπΐ τών οποίων δεικνύεται διά πρασίνου χρώματος ή προτεινο­ μένη δίοδος και παρακαλείσθε όπως έφοδιάσητε άνά εν άντί636 20 25 30 35 1 CX.R. Kafieros & Another τ. Theocharous & Others Malachtos J. γραφον προ τής 12.12.75 τόσον τό Δικαστήριον δσον καί τους δικηγόρουςτών διαδίκων μέ άντίγραφον τής παρούσης επιστολής." 5 10 15 70 25 (" I refer to the above application before the Court which relates to the above subject, as well as the acceptance by the Court of the unanimous suggestion of the advocates of the parties to carry out a new enquiry for the purpose of finding a new. probable route satisfying the purposes and needs of the application under reference and wish to inform you as follows:In the light of the new enquiry and in view of what has been stated in Court at the hearing of the above application on the 30th October, 1975, to the effect that on plot 1927, of Block B, there were erected new buildings, a thing that was, also, 'verified on the spot', after a relevant permit was granted by the competent Authority and after the decision given by the Lands and Surveys Department, I suggest that:(I) It may be indicated to the applicants, that at present and for the purpose of causing the least possible damage, nuisance or inconvenience to claim a right of way through plots 472, 11, 12, of Block Ά ' and through plot 129 of Block 'B' of Ayios Dhometios village and 30 (II) Under rule 6

(2)of the Immovable Property(Grant of Access Rules) the applicant may serve on the owners of the said plots the notice provided by rule 3 (Form No. 283) together with a site plan, within 60 days from the date to be fixed by the Court. 35 In this connection I enclose plans in quadruplicate on which the proposed route is shown in green and you are requested to furnish both the Court and the advocates of the parties with a copy, together with a copy of this letter, before the 12.12.75.") The building permit by virtue of which the new buildings were erected on plot 1927, which was produced as exhibit 5, at the trial, was issued by the appropriate authority on 5/12/73. 637 Malachtos J. Kafieros & Another τ. Theocharous & Others

(1978)From the D.L.O. plan and the architectural plan attached to this building permit the proposed new buildings consisted of a room to be built on the north western corner of plot 1927 abutting to the north on the south western boundary line of plot 132 and to the west on the north eastern boundary line of 5 plot

1. This room which is described in the permit as an auxiliary building, and which would have dimensions of 6x12 ft., was to be constructed with bricks and would be roofed with corrugated asbestos sheets and would be used as a laundry room. Eventually the two applications came on for hearing before the trial Court on the 12th January,
2. On that day at the commencement of the hearing counsel appearing for the appli­ cants in Application No. 30/72 the owners of plot 1927 made the following statement to which the other counsel concerned agreed: 10 15 " I have agreed with my learned friends that the hearing of all applications be heard together as they concern a common question of fact and law, the only difference is regarding the parties and the quantum of compensation. 20 I have also agreed with my learned friends that the main issue, that is, whether the decision of the Director of Lands and Surveys should be cancelled, be heard and decided first and in case that it is decided that the decision of the D.L.O. is not disturbed, then to proceed for the assessment 25 of compensation. If, however, the Court decides that the decision of the Director of Lands and Surveys is cancelled, then the case should not proceed here but the proceedings should be concluded in the District Court and either an appeal will be filed or a new application be made to the 30 D.L.O. for consideration of a right of passage." This submission of counsel was accepted by the trial Judge and so the case proceeded and was heard only as against that part of the decision of the Director determining the route of the access. Christodoulos Markides, the D.L.O. clerk in charge of the right of passage section, who carried out both local enquiries and prepared the two'reports, exhibits 1 and 2, gave evidence and produced the relevant files and documents connected with 638 35 I C.L.R. 5 10 15 20 Kafieros & Another v.Theocharous & Others Malachtos J. the case. He also stated that at the time he carried out the second enquiry he found new buildings standing on plot 1927 which were not in existence when he carried out the first one, and so in view of this he prepared his second report, exhibit
3. He further stated that if he had to make a new suggestion for a right of passage he would suggest the passage referred to in his second report. However, had there not been new buildings on plot 1927he would insist on his first recommendation. The new proposed passage starts from the south western corner of plot 1926 along the northern boundary lines of plots 12and 11 and the southern boundary line of plot 129 and proceeds to the west along the whole northern boundary line of plot 11 for a distance of 45ft. It then turns south along the western boundary line of plot 11 for a distance of 35ft. and then turns to the west along the northern boundary line of plot 472 proceeding for a distance of 95ft. and ends in Marathonos Street which is a blind alley. Its extent is 3180 square ft. and its estimated value is £1494.- The extent of the proposed passage through the properties of the respondents in these appeals is 880 square ft. its length is 100 ft. and its value is £765.- It is a straight passage. Besides the D.L.O. clerk, Andreas Theocharous, the husband of applicant No. 1 in application 30/72, gave evidence and stated that in plot 1927, the property of his wife, there existed 25 an old building whereas there are no buildings on plots 472, II and
4. He also stated that the reason for building on plot 1927 although he had knowledge that the case was before the Court for a right of passage in favour of the appellants in these appeals, was because his sister-in-law was about to get 30 married and needed her house to live in. Counsel for the respondents in the applications called no witnesses and left the case to be decided, as he stated, on the documentary evidence and on the oral evidence given by the D.L.O. clerk. 35 The trial Judge in his short judgment issued on 3/3/1976, had this to say at page 24 of the record: " I have heard the D.L.O. clerk who examined these cases, who gave a very clear picture of the situation and who has also produced in Court exhibits 3 and 6, files of the D.L.O. 639 Malachtos J. Kafieros & Another v. Theocharous & Others

(1978)regarding these applications and which are most enlighte­ ning. It appears that the respondent, who is the owner of plot 129, wanted and applied for a right of passage. The Director of Lands & Surveys on examination of this application for a right of passage agreed to give him a 5 right through plots 132, 1926 and

1. The reason for giving him this passage was that the owner of plot 1926 gave a right of passage free of charge and this fact, as the witness of the D.L.O. has said, was a decisive factor which was taken into consideration in granting the passage re- 10 ferred to above. The length of the road has also played an important part in his decision and also the fact that was going to a main road. As things went by and the case for one reason or another was delayed, it appears that the owner of plot 1927 obtained a building permit and 15 built houses on his plot, thus obstructing the right of passage, and on the face of this new situation all counsel agreed on the 30th October, 1975, to request the D.L.O. to revisit the place and make a new assessment of the situation. The report of theVisiting Officer, Mr. Markides, 20 who happened to be the same person as our witness in Court and the person who made the original assessment, filed a report dated 26th November,
2. He says that indeed there are buildings on the passage in plot 1927 and he indicates that it would be fair that the applicants 25 should apply for a right of passage through 472, 11 and 12 of block Ά ' and plot 129 of block *B', of the village of Ayios Dhometios. I have carefully considered the applications before me, the evidence adduced, the affidavits in support of the 30 applications and oppositions, the records, and generally all oral and documentary evidence before me. It is my opinion that the owner of plot 129 has been given excessive and preferential treatment by the D.L.O. by allowing him to have a passage on a main road through plots 132 and 35
3. I do not think that the owner of a poor stretch of land who wishes to take advantage of the law should be given such advantages as to be detrimental to other land owners adjoining his property. In the. case under con­ sideration, the owner of plot 129 has manoeuvred his way 40 through plots 132 and 1927 to have a passage through 640 1 C.L.R. 5 10 15 20 25 30 35 40 Kafieros & Another τ. Theocharous & Others Malachtos J. land which is not only essential but indispensable to the owners of it. The owner of plot 132 will be manifestly and excessively influenced by a passage through it and the owner of plot 1927has already got buildings onthe passage which he built under a valid permit. If the owner of plot 129, and it appears that hehas a 3 ft. right of passage through it which he has now been deprived of, he can claim damages, but it would be most unfair and unjust to order the owner of plot 1927 to demolish his buildings, ignore his liabilities, his duties and his obligations to his children to have them housed in that plot for the benefit of the owner of 129 and for what reason should anybody allow this audacious owner to tread through the plots of other people destroying buildings or space to make value or increase the value of a poor land that he owns by con­ verting it into building sites with a passage to a main road!! It would be more just if such a passage led to the back road Marathon Street. The intention of the legislature was not, in my opinion, to accord owners of deserted or poor and isolated enclaved lands to award them with big passages leading to main roads, but as poor passage as possible, causing as little damage as possible to other land owners; that such owners of land wishing pas­ sage should not be given the shortest possible routes; or the cheapest possible passages leading to main roads. 1 think that such owners, if they wish to have a sort of pas­ sage, not only they should be prepared to pay good prices for affecting otherpeople's properties, but also they should be given such passage as should give the least possible trouble to other land owners, no matter how long or obs­ cured such path would be. The idea and the spirit of the law in my opinion is to give access not front main road entrances. Inthe present case,asIsaid earlier,the owner of plot 129 was given, inmy opinion,sucha treatment which was more favourable than he deserved and I, therefore, consider thatthedecisions of the D.L.O.applied for should be set aside and are hereby set aside. My decision does not influence any right which the owner of plot 129 may have against the owner of plot 127 for the alleged passage which has been interfered with by the owner of the plot 1927." 641 Malachtos J. Kafieros & Another τ. Theocharous & Others

(1978)The grounds of appeal read as follows: (

1. a)The learned trial Judge tried and decided the applica­ tion subject matter of the appeal as if it were an appli­ cation on the first instance and not an appeal against the reasoned decision of the District Lands Office of Nicosia. (
2. b)The approach which a Court should follow in deciding an appeal of the above nature as expounded by the Supreme Court in the case of Georghiou v. HjiPhessa

(1970)1 C.L.R. 58, has been completely disregarded by the Court. 5 10 (

1. c)The Hon. Court took into account matters entirely irrelevant and extraneous to the case whilst ignoring other crucial and most relevant matter which should ι have affected his judgment. (
2. d)The Hon. Court by its judgment in effect condoned . the flagrant illegality of appellant who in accordance with the evidence of the D.L.O. clerk Mr. Markides constructed a building within the area of the right of passage granted to respondent on the 17.7.1972 by the D.L.O. on the 5.12.1973 whilst the present appeal was pending before the District Court of Nicosia. 15 20 (
3. e)The Hon. Court completely overlooked the fact that since the proposed new right passage involves a total area of 3180 sq. ft. and 175 ft. in extent and is valued 25 at £1494.- as compared with the total area covered by the present right of passage which is only 880 sq. ft. and 100 ft. in extent and is valued at £765.- the only suitable passage was the one the D.L.O. had decided and the alternative totally unsuitable. 30 Counsel for the appellants in arguing this appeal submitted that the trial Judge nowhere in his judgment refers to any point of the decision of the Director where in his opinion the Director went wrong, and he does not even make a finding that the decision of the Director was wrong. The trial Judge 35 did not, therefore, decide the case as an appeal under section 80 of Cap. 224 but as a case in the first instance. Counsel for the appellants also put forward the argument 642 \ 1 C.L.R. Kafieros & Another v. Theocharous & Others Malachtos J. that the trial Judge in deciding the case took into account irrelevant factors and discarded the most relevant ones. He was influenced by the erection of the new buildings on plot 1927, at the time the case was pending before him, which were 5 erected insuchaway soas toblock the 3ft. wide right of passage of appellant 1 as owner of plot 129. He did not take into account that the difficult situation was created by the owners of plot 1927 and that they should face the consequences. The fact that the newbuildingswereerected after obtaining a building 10 permit is of no significance. The second enquiry was carried out with the only object to find a solution for the settlement of the case and since no solution was found the case had to be decided on the facts prevailing at the time the first local enquiry took place. The D.L.O. clerk made it clear in his evidence 15 that had it not been for the new buildings he would stick to his first suggestion as regards the route of access to the properties of the appellants. Counsel for the appellants finally submitted that even if we accept the route suggested by the D.L.O. at the second local 20 enquiry as an alternative one, the trial Judge never compared the two routes in the light of the decision of ConstantinosNicolaou Georghiouv. Evangelia HjiGeorghiou HjiPhessa (supra). 25 30 35 40 The Immovable Property (Grant of Access) Rules 1967, which were made by virtue of the new section 11(A)

(7)place the machinery inthe hands of the Director of Lands and Surveys for the accomplishment of that purpose. Under the said Regulations and in particular under regulation 6, the Director after carrying out a local enquiry and after taking into consideration all relevant factors, fixes the direction and extent of the route of access. In case more than one property is considered suitable to serve the requirements of the dominant land, the Director is empowered to make a choice and decide on which property the right of passage will be created. In so doing he has to take into account the creation of the least possible damage, nuisance and inconvenience. Thus, the Director in determining a right of passage is vested with discretionary powers in determining private rights. In other words, the Director isissuing a decision in the domain of private law. Therefore a District Court in reviewing the decision of the Director should follow the principles on which the Supreme 643 MalachtosJ. Kafieros & Anotherτ.Theocharous& Others

(1978)Court in its administrativejurisdiction exercises judicial control over administrative acts or decisions in the domain of public law, with the only difference that the District Courtin deciding an appeal under section 80 of Cap. 224,has power to substitute its own discretionfor that of the Directorwhereas in a recourse 5 under Article 146 of the Constitution,the administrative Court cannot substitute its own discretion for that of the Administra­ tion. However, the DistrictCourtwillnot lightly substitute its own discretion for that of the Director unless there are strong reasons proved by admissible evidence before it militating in 10 that direction. As we have already said a wide discretion is vested in the Director under the law and the regulations made thereunder to determine, in the first place, as a person best qualified as an expert the direction and extent of a right of passage and theCourtin theabsence of concrete reasonscannot 15 question his conclusions. In the case of Georghiou v. HjiPhesa (supra) which was the first appeal of its kind against the decision of the Director of Lands and Surveys determining a route of access under the provisions of section 11(A) of Cap. 224 and the Regulations 20 made thereunder, this Court approved the guiding principles and factors which were taken into account by the D.L.O.clerk in arriving at his decision. In that case at page 66 we read: " In giving his evidence he stated his guiding principles and the factors which he took into account in forming his 25 opinion. Briefly they were the following: The distance of the proposed route,the creation of a straight route,as far as possible, and, generally, the minimizing of damage of the servient tenement ortenements. The trial Court were satisfied that the Directorfollowed 30 the proper procedure and that his determination of the route of the access was the right one in thecircumstances. Having given due consideration to the submissions made by appellant's counsel today we find ourselves incomplete agreement with thejudgment of the trial Court." 35 Having considered the facts and circumstances of this appeal in the light of the arguments put forward by-counsel we must say that we agree with thesubmissions of counsel for theappel- , \ 644 1 C.L.R. 5 Kafieros &Anotherτ. Theocharous &Others MalachtosJ. lants. It was on the respondents in this appeal to persuade the trial Court, by adducing oral and documentary evidence, that the decision of the Director complained of was wrong. Such evidence is lacking and on the contrary the evidence adduced proves that the said decision was a correct one. The D.L.O. clerk in arriving at his first decision took into account the length of the proposed route, that this route was a straight one and, generally, the minimizing of the damage of the servient tenements,as well as the fact that there was a judg10 ment of the Court for a passage of 3 ft. wide over plot 1927 and so only a strip of land from this plot of only 2 ft. wide was required. The other material factor which was taken into consideration by the D.L.O. clerk was that the owner of plot 1926, the second 15 appellant, had conceded a strip of land of 5ft. wide to the proposed passage and that the 5ft. strip of land which was required from plot 132 could not materially affect the owner of this plot as it is a large building site of two evleks in extent. The trial Judge instead of making his findings on the evidence 20 adduced as to where the Director went wrong, findings which in our view no Court of law could arrive at, on the facts and circumstances of this case, proceeded in the wrong direction and made the findings which have been referred to earlier on in this judgment, most of which are irrelevant and not based 25 on the evidence adduced. Before we conclude our judgment, we must reiterate what has been said time and again by this Court namely, that the hearing of cases piecemeal is entirely undesirable. The present case is a striking example why this Court has taken the above 30 view. If the question of compensation had been determined by the trial Court together with the question of the validity of the Director's decision, this litigation which started more than six years ago, would today have come to an end. Now the case has to go back to the District Court to be tried on the 35 question of compensation payable. In the result, the appeals are allowed and the Director's decision is restored. 645 MalachtosJ. Kafieros &Anotherv.Theocharous AOthers

(1978)The case is remitted to the District Court before another Judge for the determination of the question of compensation. The respondents to pay the costs of these appeals. Appeals allowedwith costs. 646