clr/1981/1981_1_543.pdf

(1981)Counsel for the Republic submitted that a subsequent enactment, Law 25/71, extended the powers vested in the Council of Ministers to the extent of entrusting them with power to lay down different dates for the termination of suspension for different causes of action. 5 Held, that the expedient of furnishing an interpretation to the provisions of a law already enacted,must be sparingly used, and then only in circumstances where the legislature failed in thefirstplace to giveaclear expression to its manifest intent; that, unless the wording of the interpretative enactment is 10 reconcilable with the provisions of the law it purports to interprete, such subsequent legislation will be treated by the Courts as a piece of retroactive legislation, leaving intact rights that may have vested in the meantime; that no such conflict is discernible in this case for it was,in the first place, the manifest 15 intention of the legislature to leave to the Council of Ministers the power of terminating the period of suspension as it might deem necessary in the light of the prevailing circumstances; that reading the two laws together, this Court concludes that the Council of Ministers was clothed with power to terminate 20 the period of suspension, that is, the period prescribed by the several laws for the expiration of the right to sue; that right to sue accrues for the purpose of the period of limitation when there is in existence a person who can sue and another who can be sued, and the facts material for enabling the plaintiff 25 to succeed have crystallised (see, inter alia,Petrou v. Petrou

(1976)1 C.L.R. 257);that thepowersoftheCouncil werestrictly limited to terminating theperiod of suspension and the decisions of the Council prior to 1976 observed the limits set down by law; that there is no warranty in the law for distinguishing 30 between different species of rights and the attempt made to introducesuchaclassification bymeansoftheprovisoinquestion was far beyond the powers vested in the Council of Ministers; and that, therefore, the proviso is ultra vires the law and consequently invalid. 35 Held, further, with regard to the validity of the remaining part of the Order, that severance of the invalid provisions is permissible whenever the dissection does not destroy the fabric of the law; that after exclusion of the proviso the remaining part of the 1976Order retains its meaning and by and large 40 544 1 C.L.R. Malachtou v. Attorney-General giveseffect to themain object of the Council of Ministers which wasgenerally to extend suspension for a further period of time. Appeal allowed. Cases referred to• 5 Laker AirwaysLtd., v. The Department of Trade [1967] 2 Q.B. 643; Chesterv. Bateson [1920] 1 K.B. 829; Customs and Excise Commissioners v. Cure and Deeley Ltd. [1962] 1 Q.B. 340; 10 Meadev. London Borough of Haringey [1979]2 All E.R. 1016; R. v. Kelt [1977] 3 All E.R. 1099; Petrou v. Petrou

(1976)1 C.L.R. 257; Fekkas v. The Electricity Authorityof Cyprus

(1968)1 C.L.R. 173; 15 NewberryD.C. v. Secretary of State [1980] 1 All E.R. 731. Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Papadopoulos, S.D.J.)dated the 7th February, 1980 (Action No. 3217/77) whereby his claim for damages 20 suffered by him as a result of a fire thaterupted,or an explosion, at a camp of the National Guard where he served as a conscript was dismissed. /. Avraamides, for the appellant. 25 CI. Antoniades, Senior Counsel of the Republic,for the respondent. LORIS J.: The judgment of the Court will be delivered by Mr. Justice Pikis. PIKIS J.: 23.11.1974 Costas Savva Malachtou, plaintiffappellant, suffered injuries as a result of a fire that erupted or 30 an explosion at a camp of the National Guard where he served as a conscript. He puts the blame for this accident on his fellow servicemen, comcript*, reservists or army men, and holds the Republic of Cyprus vicariously responsible for their allegedly negligent acts. 545 Pikis J. Malachtou v. Attorney-General

(1981)On24.6.1977heinstitutedanactionbeforetheNicosiaDistrict Court for the recovery of damages. Defendants contended that the action was statute barred and raised the matter specifically in their defence. Thereafter, on a motion of the parties the viability of the proceedings was set down for preliminary 5 determination. On 7.2.1980 Papadopoulos, S.D.J., as he then was, decided that the action was statute barred,and thereupon dismissed the case. He arrived at thisdecision ona considerationoftheprovisions of the decision oftheCouncilof Ministers embodied in public instrument 105/76, published on 18.6.1976, 10 read in conjunction with the provisions of the Suspension of Prescription Law 1964, 57/64, and s.68 of the Civil Wrongs Law, Cap. 148, specifying a two-year period of limitation for civil wrongs. The learned trial Judge does not spell out in his judgment the precise basis on which he found that the 15 action is statute barred, and hisjudgment is susceptible to two interpretations: He either concluded that Order 105/76 prescribed, as from 1.1.1977, all actions that arose prior to that date or thedate of publication of theinstrument, or, alternatively,that Order 105/76hadtheeffect ofprescribingcivilwrongs 20 that arose at a timeprior totwoyearsfrom the dateset for the reactivation of prescription, notably 1.1.1977. The Court manifestly rejected the submission advanced on behalf of the plaintiff, that the date from which time began to run was the 2nd July, 1976and not earlier, that is, the day 25 as from which the suspension of theperiod of limitation ceased to be operative by virtue of the 1975 Order that Order 105/76 replaced. Before us, learned counsel for the appellant raised an additional argumentin support ofhis submission,thatthejudgment 30 is ill-founded. He submitted that the proviso to the 1976 Order, purporting to laydowndifferent datesfor the expiration of the suspension for different causes of action, is ultra-vires the parent law that empowered the Council of Ministers to bring suspension to an end. 35 I had occasion to examine the validity of the proviso to the 1976 Order in a judgment I delivered at the Larnaca District Court (Action No. 1678/78, delivered on 6.5.1980, to be published in

(1981)2 J.S.C.), and concludedthat theproviso isultraviresthelaw, notablys.2ofLaw57/64,inthattheCouncil 40 546 1 C.L.R. Malachtou τ. Attorney-General Pikis J. of Ministers claimed powers that the legislature had not vested in them. Counselfor theappellant adopted, so it seems tome, thereasoning intheaforementionedjudgment intoto,insupport of his submission, that the proviso in question is ultra-vires 5 the law. Logically, the first question that arises for consideration is the validity of the proviso for, if invalid, its interpretation is irrelevant. It is appropriate to recite the proviso in order to examine the rival submissions we received, in their proper 10 perspective:"Νοείταιδτιήρηθείσα αναστολή6ένεφαρμόζεταιέττΐ αγωγής δι' άπαίτησιν καταβολής αποζημιώσεως δια προσωπικώς βλάβας ή άπώλειαν ζωής ή ζημίανείς Ιδιοκτησίαν συνεπεία δδικοΰ,εργατικού,ναυτικούήέτερουατυχήματοςήπυρκαϊας, 15 έγειρομένης μετά τήν Ιην Ιανουαρίου, 1977". 20 25 30 35 40 (English Translation): "Provided that the said suspension does not apply in actions for the recovery of damages for personal injuries or loss of life or damage to property resulting from a road,industrial, nautical or otheraccident or fire, instituted after the 1st January, 1977." The Suspension of Prescription Law, 1964 was enacted in the aftermonth of the unsettling events of 1963-64, in order tosafeguard therights ofthecitizensthattheymight find difficult to pursue in the anomalous circumstances of the time. It was an all embracing enactment suspending the running of the period of limitation provided by every law whatsoever, for an indefinite period of time. Power was vested in the Council of Ministers by virtue of s.2, to bring theperiod of suspension to an end, signifying such intention by an advance notice of threemonths. On any view of the plain provisions of the law, the power vested in the Council of Ministers was limited to terminate the period of suspension, provided the public was duly forewarned by threemonthsnoticeof theintended reactiva­ tion of the period of limitation. Clearly, the Council of Ministerslackedpower toprovide different datesfor thetermina­ tion of the period of suspension for different causes of action. Hadthematterendedhere,itwould bedifficult, if not impossible, to argue that the proviso to the 1976 Order had any lawful parentage. The power for the enactment of subsidiary legislation must, in the nature of things, emanate strictly from the 547 Pikis J . Malachtou τ. Attorney-General

(1981)provisions of the enabling law. Any other approach would constitute an encroachment on the legislative powers of the House of Representatives, the body exclusively entrusted with legislative powers, under our Constitution. Subsidiary legisla­ tion enacted without just cause will be declared ultra-vires 5 (see, inter alia, Laker Airways Ltd. v. The Department of Trade [1967] 2 Q.B. 643 (C.A.); Chester v. Bateson [1920] 1 K.B. 829; Customs & Excise Coiwnissioners v. Cure and Deeley Ltd. [1962] 1 Q.B. 340; Meade v. London Borough of Haringey [1979] 2 All E.R. 1016). A body to which power is delegated to 10 legislate must derive authority from the provisions of the ena­ bling enactment, and any attempt to by-pass or transgress the limits set thereto will be struck down as ultra-vires. They cannot infer the existence of any authority to legislate, other than that expressly conferred by law, and must, therefore, 15 confine themselves to the four corners of the enabling enactment. Any relaxation of this approach would certainly undermine the system of separation of powers that pervades our system of law and finds expression in the Constitution. It is the submission of learned counsel for the Republic, as 20 we comprehended it, that a subsequent enactment,notably Law 25/71, extended the powers vested in the Council of Ministers to the extent of entrusting them with power to lay down different dates for the termination of suspension for different causes of action. The marginal note to the relevant section of Law 25/71, notably s. 3, states that the pertinent statutory provision is aimed at supplying an interpretation of the powers vested in the Council of Ministers by Law 57/

1. It is legitimate to consult the marginal note for the purpose of determining the 30 scope of a particular section of the law but not its purpose that must be gathered from the wording of the law itself (see, inter alia, R. v. Kelt [1977] 3 All E.R. 1099 (C.A.) ). Indeed, such appears to have been the intention of the legislature to furnish what is known as an authenticinterpretationto theprovi- 35 sions of a law in the statute book. The wording of s. 3 makes it abundantly clear that the sole purpose of theLaw is to remove any doubts that might arise as to its competence to cancel, suspend, amend or replace any order made pursuant to the powers vested in the Council by s. 2 of Law 57/64, terminating 40 the period of suspension. Need arose for clarifying the powers 548 25 1 C.L.R. Malachtou v. Attorney-General Pikis J. vested in the Council of Ministers as a result of the decision oftheCounciltoamend a decisiontaken on 14.5.1970published on 29.5.1970 under Instrument 401 purporting to terminate the period of suspension as from 1.7.
2. 5 Theexpedient offurnishing an interpretation totheprovisions ofa lawalreadyenacted, must besparingly used, and thenonly in circumstances where the legislature failed in the first place to give a clear expression to its.manifest intent. It is riot the province of the legislature to interprete its laws but that of the 10 judiciary. Certainty in the law would be undermined if the legislature resorted to an ex post facto interpretation of its enactments whereas serious inroads would be created to the system of separation of powers, so essential for sustaining theruleoflaw. Therefore, unlessthewordingoftheinterpreta15 tive enactment is reconcilable with the provisions of the law it purports to interprete, such subsequent legislation will be treated bytheCourtsasa pieceofretroactivelegislation, leaving intact rights that may have vested in the meantime. No such conflict is discernible in this case for it was, in the first place, 20 the manifest intention of the legislature to leave to the Council of Ministers the power of terminating the period of suspension asit might deem necessary inthe light ofthe prevailingcircumstances. Reading the two laws together, we conclude that the Council of Ministers was clothed with power to terminate the 25 period ofsuspension, that is,theperiodprescribed bytheseveral lawsfor theexpiration oftherighttosue.' Arighttosueaccrues for the purpose of the period of limitation when there is in existence a person who can sue and another who can be sued, and the facts material for enabling the plaintiff to succeed 30 havecrystallised (see,interalia, Petrouv.Petrou

(1976)1C.L.R. 257). Thepowers of the Council werestrictly limited to terminatingtheperiod of suspension and thedecisions ofthe Council prior to 1976 observed the limits set down by law. There is no warranty in the law for distinguishing between different 35 species of rights and the attempt made to introduce such a classification was far beyond the powers vested in the Council of Ministers. Therefore, it is ultra-vires the law and consequently invalid. It is not strictly necessary to examine whether this invalidity 40 taints the 1976 Order in its entirety. But as the matter is one of great consequence to the public, we may endeavour to give 549 Pikis J. Malachtou v. Attorney-General

(1981)some guidance on the subject. It iswell settled that theprovisions of a law tainted in part by unconstitutionality may be sustained, the valid provisions, provided the unconstitutional provisions are severable from the remaining body of the law (see, inter alia, Fekkas v. The ElectricityAuthority of Cyprus 5

(1968)1 C.L.R. 173). Several tests have been propounded for determining severability in this area, that boil down to this. Severanceispermissiblewheneverthedissectiondoesnotdestroy the fabric of the law. The fabric of the law remains intact whenever the remaining part of the law retains its compactness 10 and gives effect to the dominant intention of the legislature. There is authority supporting the proposition that similar considerations affect the fate of subsidiary legislation after dismemberment (see, inter alia, NewberryD.C. v. Secretary of State [1980] 1 AUE.R. 731(H.L.) ). After exclusion of the 15 proviso theremainingpart ofthe 1976Orderretainsitsmeaning and by and large gives effect to the main object of the Council of Ministers which was generally to extend suspension for a further period of time. In the result, the appeal is allowed with costs here and in 20 the Court below. The case is remitted to the District Court for trial. Appeal allowedwith costs here and in the Courtbelow. Case remitted to District Courtfor 25 trial. 550