(1982)1982 July 30 [L. Loizou, HADJIANASTASSIOU A N D MALACHTOS, JJ.] CHRISTOS S. PrTSILLIDES AND ANOTHER, Appdants-Applicants, ANDREAS A. NASIF AND ANOTHER, Respondents. (Civil Appeal No. 5097). Immovable Property—Boundary disputes—Section 58 of the Immovable Property (Tenure, Registration and Valuation)Law, Cap. 224 —Director of Lands and Surveys bound to determine the dispute and settle the boundaries—He cannot refuse to give a definite answer to a boundary dispute because of lack of material—Boun5 dary dispute being a matter primarily in the domain ofprivate law civil Courts may assume jurisdiction—And have power, under section 80of Cap. 224, to requirethe Director tosettle the dispute. The appellants, as registered owners of a piece of land, applied under section 58* of the Immovable Property (Ttnuie, Re- 10 gistration and Valuation) Law, Cap. 224, to the Director of Lands and Surveys Department ("the Director") to decide on their boundary dispute with the lespondents. The Director, after visiting the land in. question and looking into the various files, addressed a letter to the appellauts informing them that 15 in the absence of any material he was unable to arrive at a decision. The appellants appealed to the District Court, in exercise of their rights under section 80** of Cap. 224. The District Court dismissed the appeal having held that there was no decision that could form the subject matter of an appeal in 20 accordance with section 80 of Cap. 224 and had, therefoie, no jurisdiction to entertain the appeal. * Section 58 is quoted at p. 430 post. ** Section 80 is quoted at p. 430 post. 426 1 CX.R. Pitsillides sud Another v. Nasif Uponappeal to the Supreme Court. 5 10 15 20 25 Held, that section 58 casts a mandatory duty on the Director to deteimine the dispute effectively, employing the following phraseology: " _ shall in the first instance, be determined by the director „ — " ; that the Director is, therefoie, in the first place bound to determine the dispute and settle the boundaries, as well as he can, in the light of the material available and the recoids of the Lands Department; that the law does not envisage any circumstances under which the director might conceivably be excused from giving a definitive answer to a boundary dispute; that, in consequence, he has a mandatory duty to decide the boundary dispute and nothing short will relieve him of his responsibilities; that this, he manifestly failed to do in the present case and the pettinent question is whether there is power vested in the court, under section 80 Cap. 224 to require him to do so; that the sub judice matter is primarily a matter in the domain of private law (see Valana v. The Republic, 3 R.S.C.C. 91); that, therefore, the civil courts may legitimately assume jurisdiction in any matter falling in the domain of private law; that such powers in the case of a boundary dispute, are defined by section 80 that empowers the court to make any order that appears to bejust in the circumstances; that "just" in this context encompasses, inter alia, the power where appropriate to order the administrative organ to discharge the duties required by law; that given the facts of the case^fiis isTthe~onlyjust course in the circumstances;--and-that,_ consequently, the Director is directed to examine the matter afresh and determine it, as required by law. Appeal allowed. 30 35 Cases referred to: Achilleas Hadjikyriacou and Theologia Hadjiapostolou- and Others, 3 R.S.C.C. 89; Stylli v. Andronikou, 1961 C.L.R. 324; Valana r. Republic, 3 R.S.C.C. 91; Republic v. M.D.M. Estate Developments (Revistonal Jurisdiction Appeal No. 223, delivered on 17th May, 1982, still unreported). Appeal. Appeal by applicants against the judgment of the District 427 PltsiUides and Another τ. Nasif
(1982)Court of Limassol (Stylianides, Ag. P.D.C. & Hadjitsangaris, D.J.) dated the 15th June, 1972, (Appl. No. 90/71) whereby it was held that there was no decision that could form the subject matter of an appeal under section 80 of Cap.224 and that the said Court had no jurisdiction to entertain the appeal 5 under the said section. G. Cacoyannis, for the appellants. Chr. Demetriades, foi the respondents. Cur. adv. vult. L. Loizou J.: The judgment of the Court will be delivered by Mr. Justice Hadjianastassiou. 10 HADJIANASTASSIOU J.: This is an appeal against the judgment of the Full Court cf Limassol in holding that there was no decision that can form the subject matter of the appeal under section 80 of Cap. 224; and that the said Court has no juris- 15 diction to entertain the appeal in accordance with section 80 of Cap.
- THE FACTS: This is a case of boundary dispute and the applicants, the registered owners, applied under section 58 of the Immovable 20 Property Law, Cap. 224, to the Director of Land Registration and Surveys to decide on their boundary dispute with the respondents. The dispute is related to a piece of land of 23 feet. The said Director, having visited the land in question and having also looked into the various files, addressed a letter 25 to the applicants on 30th October, 1970, informing them that in the absence of any material he was unable to arrive at a decision. On appeal to the Full Court, the trial Court in issuing its reasoned decision had this to say:"The difficulty arises in the present case because we are not confronted with a decision, but with what appears to be a refusal on the part of the Director to perform the duties entrusted to him by the Law. Any dispute between litigants concerning a decision of the Director is a matter that affects their private rights and such decision of the Director can be classified as falling in the sphere 428 30 35 1 C.L.R. Pitsillides and Another v. Nasif Hadjianastassiou J. of Private Law even though the body taking the decision is an organ of the Public Administration". Then, having quoted the case of Achilleas Hadjikyriacou andTheologia Hadjiapostolou andOthers of Kivides, 3 R.S.C.C. 5 at p.89,the Court proceeded to statethat "the matter acquires a different complexionwhereaPublic Officer refused to perform hisstatutoryduties. Anysuchconduct,inour opinion, touches the interest of the public as a whole, in the proper exercise of administration functioning and can legitimately be said to 10 constitute an actinthedomain of Public Law. Wherea Public Officer refused to perform his public duties, it is not an individual litigant that may feel aggrieved but the interest of the public in securing proper administration." It hasbeen argued that wehave power to direct the Director 15 to perform his statutory duties; we are of the opinion thai • we have no such power. Only the Supreme Couit can deal with such a matter either by means of a recourse under Aiticle 146of the Constitution or by such process of prerogative writs that have survived the changes incurred by the Constitution. 20 Finally, the Court concluded as follows:"Asthematterwasnot expressly raisedintheaboveappeal, it cannot be said that the dismissal of the Appeal entails, of necessity, that the District Court has power to order the Director-tcTtake adecisionr 25 It is, therefore, our view that in so far as there is no decision that can form the subject matter of an appeal in accordance with section 80 of Cap. 224, this Court has nojurisdiction to enteitain the appeal which is accordingly dismissed with costs to be assessed by the Registrar". 30 On appeal, Mr. Cacoyannis argued (a) that the Full Court was wrong in law in holding that there was no decision that can form the subject matter of an appeal under section 8 of Cap. 224; and (b) that the Court was wrong in law in holding that it had no jurisdiction to entertain the appellant's appeal 35 from the refusal ofthe Director of Lands and Surveysto decide the dispute referred to him by the appellants, and to send the case back for his decision as it was done in the case ofDora Stylli v. Chrysoulla Andronikou,1961 C.L.R.
- 429 Hadjianastassiou J. Pitsillides and Another v. Nasif
(1982)We think that it is necessary before dealing with the appeal to state that section 58 of the immovable Property Law Cap. 224 reads as follows:"58
(1)Where any dispute arises as to the boundaries of any registered land, such dispute shall, in thefirstinstance, 5 be determined by the Director after notice given to the parties at least fourteen days in advance informing them ofthetimewhen theboundaries indisputewillbeinspected and no Comt shall entertain anyaction orother proceeding relatingtosuchdisputeunlessthesamehasbeendetermined 10 in the first instance as in this section provided.
(2)TheDirector maydecideonthedispute intheabsence of any party notified as in subsection
(1)of this section provided.
(3)On deciding a boundary dispute the Director shall 15 give notice of his decision to the parties to the dispute and shall place such land marks as he may think fit to show the line of the boundary as byhim decided and make such measurements and notes as may be required for indentifying the position of the land marks". 20 With this in mind we turn to section 80 which enables an appeal to befiledagainst the Director's decision and provides: "80. Anypersonaggrieved byanyorder,noticeordecision of the Director made, given or taken under the provisions of this Law, may, within thirty days from the date of the 25 communication to him of such order, notice or decision, appeal to the Court and the Court may make such order thereon as may be just but, save by way of appeal as provided inthissection, no Court shallentertain anyaction orproceeding onanymatterinrespectofwhichtheDirector 30 is empowered to act under the provisions of this Law. Provided that the Court may, if satisfied that owing totheabsencefrom theColony,sicknessorotherreasonable cause the person aggrieved was prevented from appealing within the period of thiity days, extend the time within 35 which an appeal may be made under such terms and conditions as it may think fit". Indeed, counsel for the appellants argued that from the 430 1 C.L.R. PHsillides and Another v. Nasif Hadjianastassiou J. provisions of section 58, it becomes apparent that that section imposes a positive duty on the director to decide the boundaries one way or the other, and had no right to refuse or abstain or to claim that he wai unable to arrive at a decision. 10 Counsel further argued that the said Director should have arrived at some decision and given the parties a chance to challenge his decision with whatever legal means are available to them, once from the wording of section 58 it is clear and it casts a duty on the Director to arrive at a decision. Furthermore, counsel argued that the emphasis is on "deciding" and not on failing to decide a boundary dispute, and that refusal to decide cannot amount to a decision. Finally, counsel invited this Court to take the stand that once the Director has failed to exercise his duties and powers 15 under the said section, the appeal should be allowed with a direction to the Director to determine the dispute one way or the other. On the contrary, Mr. Dcmetriades on behalf of the respondent argued that in the present casethere isno decision under section 20 58 once the Director did not determine the dispute. Indeed, he went further to add that his inability to reach a decision does not amount to a decision and this is also clear from the grounds of appeal. The_derision of the Court must, in the end, turn on the poweis 25 and dutiesofthe Director adjudicating upona boundary dispute, as defined by section 58
(1)of Cap. 224 on the one hand, and on the other those of the District Court on appeal from a decision of the Director under section 80 of the same law. Section 58casts a mandatoiy duty on the Director to determine 30 the dispute effectively, employing the following phraseology: " shall in the first instance, be determined by the director ". The Director is, therefore, in the first place bound to determine the dispute and settle the boundaries, as well as he can, in the light of the material available and the records 35 of the Lands Department. The law does not envisage any circumstances under which the director might conceivably beexcused from givinga definitive answer to a boundaiydispute. Inconsequence, hehasa mandatory duty to decidethe boundary dispute and nothing short will relieve him of his responsibilities. 431 Hadjianastassiou J. Pitsillides and Another v. Nasif
(1982)This, he manifestly failed to do in the present case and the pertinent question iswhether thereispower vestedinthe Court, under section 80Cap.294torequirehim todoso. Thelearned trial Judgesconcluded to the contrary, holding that the request of the appellant was in the nature of an application for a 5 prerogative order, a matter over which the Supreme Court has exclusive jurisdiction, by virtue of Article 155.6 of the Constitution. We are unable to sustain this view of the law, for the following reasons: The subjudice matter is primarily a matter in the domain of private law. Sec, Savvas Yianni 10 Valana v. The Republic, 3 R.S.C.C. 91; see also the recent decision of TheRepublic of Cyprus andM.D.M. Estate Developments Ltd., Revipional Jurisdiction Appeal No. 223 delivered on 17thMay, 1982. Therefore, thecivilcourts maylegitimately assume jurisdiction in any matter falling in the domain of 15 private law. Such powers in the case of a boundary dispute, are defined by section 80 that empowers the court to make any order that appears to bejust in the circumstances. "Just" in this context encompasses, inter alia, the power where appropriate to order the administrative organ to discharge the duties 20 required by law. In truth, given the facts of the case, this is the only just course in the circumstances Consequently, we direct that the Director does examine the matter afresh and determine it, as required by law. The appeal, is. therefore, allowed, with costs. 25 Appeal allowedwithcosts. 432