(1982)1982 October 12 [L. Loizou, DEMETRIADES AND PIKIS, JJ.J IMPROVEMENT BOARD OF KAMBOS, Appellant-Defendant, v. KLEONIKI SAWA KOUDELLARI, Respondent-Plaintiff. (Civil AppealNo. 6235). Streets andBuildings Regulation Law, Cap.96—"Service ofnotice" within tliemeaningofsub-section
(2)ofsection 15
(4)ofthe Law— It must be affirmatively provedthat the notice,no matter what alternative modeof servicethe senderchose to adopt, must have actually come into the handsof the addressee. 5 The sole question in this appeal was whether the sending of a notice byregistered post bytheappropriate Authority under the provisions of s.3
(2)(b) of the Streets and Buildings Regulation Law,Cap.96amounted to"serviceofnotice"withinthemeaning of the definition of "service" as set out in sub-section
(2)* of 10 section 15(A) of the Law. Held,that a perusal ofthe clearwording ofthe definition and particularly the first paragraph thereof with which this Court is concerned in the present case,leaves no room for doubt that the correct construction to be placed on it is that it must be 15 affirmatively proved that the notice, no matter what alternative mode of service the sender chose to adopt, must have actually come into the hands of the addressee; and that this Couit does not think that, considering the consequences of "service", * Sub-section
(2)reads as follows: ' *'Servic5*of notice is deemed to be effected if delivered to the owner or, where he is not in the Republic and his address is known, if sent to him at such address by double registered letter or, where the ownrr is not known or cannot be traced, if published in at least two daily newspapers of the language of the owner circulating in the district within which the building is situated and posted up at a conspicuous part of the building". 760 1 C.L.R. 5 10 Impr. Board Kambos r. Koudellari the intention of the legislatuie could have been anything else (Theodorou v. Abbot of Kykko Monastery
(1965)1 C.L.R. 9 and Katsantonis v. Frantzcskou
(1981)1 C.L.R. 566 distin1 guished). Appeal dismissed. Cases referred to: Theodorou v. Abbot of Kykko Monastery
(1965)1 C.L.R. 9; Katsantonisv. Frantzeskou
(1981)1 C.L.R. 566; Fawcett v. Graham,a New Zealand case reported in
(1973)1 N.Z.L.R. 495. Appeal. Appeal by defendant against the judgment of the District Court of Nicosia (Ioannides, D.J.) dated the 24th January, 1981, (Action No. 3265/78)whereby the defendant was adjudged 15 to pay to plaintiff the sum of £ 8 0 - as damages caused to the wall of plaintiff's house. K. Michaelides, for the appellant. P. PetrideSy for the respondent. Cur. adv. vult. 20 L. Loizou J. read the following judgment of the Court. The appellants are the Improvement Board of Kambos village and the appropiiate authority within the area under the provisions of s.3
(2)(b) of the Streets and Buildings Regulation Law, Cap. 96. The respondent is the owner of a house at the same 25 village. On the 6th September, 1976, the appellant sent a notice to the respondent by registered post under S.15A of the Streets and Buildings Regulation Law, as set out in Law No. 6/64, informing her that her house was in such a state as to constitute 30 a danger to passers by or to neighbouring houses or to persons residing therein or in a neighbouring house and requesting her to demolish part of a downstairs room which allegedly was in a ruinous condition and also to repair the rest of the premises within one month from the service of the notice. 30 By the same notice the respondent was informed that if she failed to take the measures indicated in the notice within the period specified therein the Board would proceed and take such measures for the repair and or demolition of the part of 761 L. Loizou J. Impr. Board Kambos v. Koudellari
(1982)thepremises that wasin a ruinous condition asthey considered necessary and that she would have to pay all costs incurred. Infact,someconsiderabletimelater,inJanuary, 1978,theappellants demolished part of the downstairs room because the respondenthadnot compliedwiththenotice. Onthe30thAugust, 5 1978, the respondent instituted proceedings against the Board claiming£250damagesfor trespassand aninjunction restraining the appellants from interfering with her property. The appellants counterclaimed for a sum of £20 being the costs incurred by them in demolishing the part of the downstairs room. 10 Thelearned trial Judge heard the evidence of the respondent and one witness called on her behalf and of three witnesses called bytheappellants. Most of theevidence waswithregard to-the state of thepremises and the amount ofdamages. With regard to the notice it was thecase for the appellants that they 15 forwarded the notice to the respondent by registered letter addressed to her at Kambos village, presumably on the 6th September, 1976, and that the letter had not been returned. DAV.3, Zographos, a District Inspector, who testified as to this fact was not in a position to say if the respondent had 20 actually received the letter nor did he have any proof that the letter was actually delivered. Another witness called by the appellants, D.W.2, Stelios Iosif, an Inspector of the Board, gaveevidenceto the effect that hehad orallyinformed respondent's daughter and son-in-law wholived atthe villageand also 25 a sonofherswholivedinNicosiaofthestateoftherespondent's houseandoftheneedfor repairsandthisbecausetherespondent was not residing at the village and the witness did not know where to find her. The respondent on the other hand testified that for some 30 five years prior to the trial she had been living at Psimolophou village and only visited Kambos occasionally. She denied that shehadeverreceivedthenoticeinquestion orthat anybody had informed her of the decision of the Board. That the respondent was not residing at Kambos village and her house 35 was unoccupied in 1976 is common ground. The learned trial Judge found as a fact that the notice had beenposted totherespondent andthat ithadnot beenreturned. But having regard to the evidence of the respondent and in the 762 1 CX.R. Impr. Board Kambos v. KoudeUari L. Loizou J. circumstances of the case came to the conclusion that she bad never received the letter. Also, having regard to the wording of S.15A and particularly the definition of the word "service" he came to the conclusion, and so held, that the appellants 5 did not comply with the provisions of the section in as much as it had not been proved that the notice had been delivered to the owner, and that,therefore, the demolition was unlawful. λ Intheresult theappellantswere adjudged to pay to the respon dent the sum of £80 by way of damages and the appellants' 10 counterclaim was dismissed. By thepresent appeal theappellants challenge the correctness of the Court's judgment on the following grounds: 15 20 25 30 "1. The interpretation placed by the trial Court on section 15A of the Streets & Buildings Regulation Law,Cap. 96, as amended, is wrong. 2. In view of the findings of the trial Court that the letter dated 6.9.1976 was sent registered by the witness Zographos on behalf of appellant and same was not returned, the finding of the trial Court that plaintiffrespondent did not receive same was contrary to the evidence and unreasonable. 3. The trial Court wrongly failed to take into consideration the fact that the children of plaintiff-respondent were informed of appellant's decision to declare the subjectproperty as being in a dangerous and ruinous condition and that the demolition took place in January, 1978. 4. In view of the evidence adduced the trial Court wrongly found that the subject-matter room was unlawfully demolished and that same had some value and wrongly found that plaintiff-respondent suffered £80.- damages amount which under the circumstances of the case and evidence adduced was, in any way manifestly excessive. 5. In view of the evidence adduced the trial Court wrongly dismissed appellant's counterclaim". 35 We need not concern ourselves with the part of the appeal relating to thedamages as theparties have agreed,very properly in our view, that such damages should be assessed at £25. 763 L. Loizou J. Impr. Board Kambos τ. KoudeUari
(1982)The gist of the argument of learned counsel for the appellants in this Court with regard to the notice mainly was that the trial Judge wrongly concluded that the respondent had not received the notice and that,therefore, there was nocompliance with the provisions of the relevant section of the law especially 5 in view of the finding that the notice had been forwarded by registered post and the letter was not returned. Once it was proved, he argued, that the letter was posted and had not been returned the irrebutable presumption was that it was delivered. In support of his argument counsel cited Soctates Theodorou 10 v. Abbotof Kykko Monastery
(1965)1 C.L.R. 9, Ioannis Katsa ntonis v. KyriacosFrantzeskou
(1981)1 C.L.R. 566 and also from Words and Phrases Legally Defined, Butterworth, Supple ment 1975, 2nd edition, the case of Fawcett v. Graham, a New Zealand case reported in
(1973)1 N.Z.L.R. 495. 15 We do not think that this Court can derive much assistance from the above cases as they are clearly distinguishable from the present case in as much as in none of the cases cited was there a provision similar to theprovision of the section we are dealing with. Inthecases citedtheissueturnedonthepresum- 20 ption or inference that a letter shown to have been posted and not returned by the Post-Office is prima facie evidence of its delivery to the person to whom it is addressed. Particularly in the last two cases the relevant section of the law provided for alternative modes of service including service by registered 25 post and in the Katsantonis case there was evidence that the addressee had in fact received thepost-office slip and had failed to collect the letter. The question that falls for consideration and decision in the present case is whether the notice, exhibit 1, had been 30 "served" on the respondent in compliance with the provisions of S.15A of the Streets and Buildings Law and consequently on the correct construction of the word "service" as set out in sub-section
(2)thereof. It reads as follows: " 'έπίδοσις* ειδοποιήσεως λογίζεται γενομένη έάνπαραδοθή 35 είς τον Ιδιοκτήτην,ή έάν ούτος είναι εκτός της Δημοκρατίας καϊ ή διεύθυνσις αύτοΰ γνωστή, έάν άποσταλη είς αυτόν είςτήντοιαύτηνδιεύβυνσινδιαδιπλήςσυστημένηςεπιστολής, ή έάν ό Ιδιοκτήτης δέν είναι γνωστός ή δέν είναι δυνατή ή άνεύρεσις, έάν δημοσιευθηείςδύοτουλάχιστονημερησίαςΙφη- 40 764 1 CLR. Impr. Board Kambos v. KoudeUari L. Loizou J. μερίδαςτης αυτής μετάτοΰ ιδιοκτήτουγλώσσης,κυκλοφορού σας έν τή επαρχία έν ή κείται ή οίκοδομή, καΐ τοιχοκολληθή είς εμφανές μέρος τής οίκοδομής." 5 10 (" 'service' of notice is deemed to be effected if .delivered "to.the owner or, where he is not in the Republic and his address is known, if sent to him at such address by double registered letter or, where the owner is not known or cannot be traced, if published in at least two daily news papers of the language of the owner circulating in the district within which the building is situated and posted up at a conspicuous part of the building"). A perusal of the clear wording of the above definition and particularly the first paragraph thereof with which we are concerned in the present caserleaves no room for doubt in our 15 mind that the correct construction to be placed on it is that it must be affirmatively proved that the notice, no matter what alternative mode of service the sender chose to adopt, must have actually come into the hands of the addressee. Nor do we think that, considering the consequences of "service" of the 20 notice,the intentionof the legislature could have been anything else. Another significant factor which in our viewsupports the finding of the trial Judge that the notice was not received by the respondent and that,therefore, there was no compliance with the provisions of the section, is the fact that although the 25 notice was allegedly forwarded by registered post and it is a notorious fact that a registered letter must be signed for, even though not necessarily by the addressee, and thus delivery should not be difficult to prove, no such evidence has been forth coming in the present case. 30 35 In the light of the foregoing we are in complete agreement with theconclusionreached by thetrial Judge thattheappellants have not complied with the provisions of S.15A in the sense that they have failed to prove "service" of the notice. In the result this appeal is dismissed with costs on the scale applicable to the amount of the agreed damages. Appeal dismissed with costs. 765