(1982) 1982 November 12 [L. Loizou, STYLIANIDES, PIKIS, JJ.] SYMEON GEORGHIOU, Appellant·Plaintiff. ATTORNEY-GENERAL OF THE REPUBLIC, Respondent· Defendant. (Civil Appeal No. 6052). Civil Wrongs Law,
Article 172
of the Constitution—Meaning 5 —Liability of the State for acts of its officers—Relevance of section 28 of the Civil WrongsLaw, Cap. 148 to the determination of the Liability of the State under Article 172. Damages—Exemplary damages—Employer—Liability to pay exemplary damagesfor unlawful acts of his servants—Principlesappli- \Q cable. Theappellant-plaintiff was on the7th March, 1974 approached by two Police constables who asked him to follow them to the Police Station for the purpose of giving a statement; at. the Police Station he was confronted by a team of police 15 constables who subjected him to a hostile interrogation with a view to elliciting whether he was a membei of an anti government or illegal association or oiganization. While requiied to give a statement as to his connection with an unlawful organization, he was, in the process of interrogation, assaulted, 20 suffering, as a result, minor injuries that caused him damage, estimated by the tiial Judge to range between £70.- and £80.Notwithstanding the finding by the trial Court that the appellant was ill-treated while giving a statement, the trial Judge dismissed 938 1 C.L.R. Georghiou ν· Attorney-General his action for damages in view of the provisions of section 28* oftheCivil Wrongs Law, Cap. 148andintheabsence of evidence that the Republic, as the master of the unidentified policemen who committed the assault had either expressly authorised or later ratified the trespass to his peison. 5 Upon appeal by the plaintiff there arose, inter alia, theissue whether it was at all opento the State torestrict by law the lia bility created byArticle 172**for wrongful acts of its servants, committed in the exercise or purported exercise of their duties. 10 Held,
(1)that section 28 of Cap. 148 was incorporated in the statute
the sum total of the provisions of the Civil Wiongs Law,includingthoseofs.4{l), expressly prohibiting an actionagainst the Statefor civil wrongs of its servants, since found unconstitutional (see Kyriakides case, 1 R.S.C.C. 66); that it does not aim to regulate liability under Article 172 for injurious unjust acts of the officers of the Republic commitled in the exercise or purported exercise of their duties; that it has no relevance to the liability of the State for acts of its servants; that if s.28 is at all relevant, it comes in conflict with Article 172totheextentthatitlimits theliability of theRepublic for certain manifestly wrongful acts contrary to the very letter of the afoiesaid article of the Constitution; that if s.28 was held to be reconcilable with the Constitution, it would open thedoortotheState,limitingitsliability for avariety of wrongful acts, neutralizing thereby the mandatory provisions of theCon stitution that make no distinction between the wrongful acts in the sense of Article 172 for which the State may be held liable; that, therefore, on either view of the law, s.28 has no beating on this case. 15 20 25 30 Held,fuither(l) thatthenotionof "exercise ofduty" in Aiticle * Section 28 provides as follows: "28. Notwithstanding anything contained in this Law, no principal or mastershall beliable for any assault committedby his agent or servant against any other person unless he has expressly authorised or ratified such assault". ** Article 172 of the Constitution provides: "172. The Republic shall be liable for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic. A law shall regulate such liability'*. 939 Georghion τ. Attorney-General
(1982)172 is fairly straight forward; that it involves the execution of duties ordained by law, andcovers cases of damage arising from thewrongful execution of their lawful duties whether intentional or accidental; that purported exercise of duty encompasses wrongful acts in the sense of Article 172, committedby officers 5 or authorities of the Republic while professing or claiming to carry out duties associated with their office but not so in fact or law, in other words a case of abuse of office.
(2)That injurious act or omission is one that causes damage or produces adverse effects to the rights of the person affected 10 thereby; thatfor the injurious act or omission to beactionable, it must be "άδικος"—unjust(wrongful). "Unjust" or "wrong ful"
Article 172
, signifies an act committed without authority or justification in law; that the authority of officers of the State emanates from the law or laws setting 15 up their office, defining their duties and regulating their dis charge subject, always, to the fundamental provisions of the Constitution and notions of good administration; thatAbuse of authorityorofficelies attherootof theliability of theRepublic for acts or omissions of its officers, bothin thefieldof public as 20 well as private law.
(3)That article 172 laye down that the Republic is liable for the injury caused by the officer's wiongful act; "injury" in this sense, suggests loss and damage remediable by an appropriate award of damages restoratory of thsrights of theinjured party; 25 that this is achieved by awarding compensation sufficient to achieve the above end; that the concept of exemplary damages imports an element of punishmentdirected against the wrong doer;thatthereis,inprinciple,little roomfor punishinganyone for the unconstitutionalacts of his employees; that if anything, 30 the employer is himself the victim of such conduct by having to compensatethoseinjured thereby; thatonlywhentheemploy er encourages theunlawful could onejustify exemplary damages against one for the acts of his servant (see Harold Luntz in hiswork onthe"Assessment of Damages"paras. 1220and 1814); 35 that, therefore, the Republic, in the absence of any suggestion that they encouraged the unlawful conduct of the policemen, if held responsible, they areonly liable tocompensatory damages between £70.- and £80.-.
(4)That the finding of the trial Court that the assault was 940 40 1 CX.R. 5 10 15 20 25 Georghfou v. Attorney-General committed while the policemen were endeavouring to carry out their duty is not properly warranted by the evidence; and that, therefore, this factual issue will be remitted to the trial Court for retrial. Appealallowed in part. Cases referred to: Kyriakides v. Republic,1 R.S.C.C. 66; Vrahimi and Another v. Republic, 4 R.S.C.C. 121; McCarth/s Limited v. Smith [1981] 1 All E.R. I l l ; Attorney-General v. Marcoullides and Another
(1966)1 C.L.R. 242; Gavris v. Republic,1 R.S.C.C. 88; Petridesv. Greek CommunalChamberand Another
(1965)1 C.L.R. 39; Rookes v. Barnard[1964] 1 All E.R. 367; Cassell & Co. Ltd. v. Broome[1972] 1All E.R. 801; Drone v. Evanghelou [1978] 2 All E.R. 437; Papakokkinouv. Gunther
(1982)1 C.L.R. 65. Appeal. Appeal by plainJff against the judgment of the District Court of Nicosia (Ioannides, D.J.) dated the 11th December, 1979, (Action No. 1731/74) whereby his claim for damages as a result of ill-treatment whilst in police custody was dismissed. A. Eftychiou, for the appellant. S. Georghiades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. L. Loizou J.: The judgment of the Court will be delivered by Mr. Justice Pikis. 30 . PIKIS J.: An important question of constitutional law must be decided in these proceedings, the nature and extent of the liability of the Republic for wrongful acts or omissionsof its officers. Incidental to our decision isalso the constitutionalily of s.28 of the Civil Wrongs Law, limiting liability of a principal or « master for assaults of a servant to assaults expressly authorised or subsequently ratified. More precisely, we must determine, in order to resolve the issueindispute, whether itisal all open to 941 Pikis J. Georghlou v. Attorney-General
(1982)the State to rertrict by law the liability created by Article 172 for wrongful acts of its servants, committed in the exercise or purported exercise of their duties. The factual background to this appeal, as found by the trial Judge, but challenged before us on behalf of the respondent, can be summarised as follows:- 5 Symeon Georghiou, an employee of the Water department, the plaintiff-appellant before uf, was, on 7th March, 1974, approached bytwo policeconstables who asked him to follow them to the police station, for the proferred purpose of giving a state- 10 ment. He did as requested and accompanied the police constables to Paphos Gate police station, where he was confronted by a team of police constables who subjected him to a hostile interrogation with a view loeliciting whether he was a member of anti government or illegal association or organisation. 15 While required to givea statement as to hisconnection withan unlawful organisation, he was, in the process of interrogation assaulted, suffering, as a result, minor injuries that caused him damage, estimated by the trial Judge to range between £70.and £80.-. Notwithstanding this finding, resting on prunary 20 facts or inferences therefrom that appellant was ill-treated while giving a statement, the learned trial Judge dismissed the actioninviewoftheprovision! ofs.28,Cap.148,andtheabsence of evidence that ihe Republ;c, as the master of the unidentified policemen who committed the assault, had either expressly 25 authorieed or later ratified the trespass to his person. This statement of the law was challenged on the submission that s.28ceasedto bepart ofourlaw,asfrom theintroduction ofthe Constitution, so far as applicable to the Republic as principal, because it is contrary to and inconsis^nt with the provisions of 30 Article 172 of the Constitution. Briefly,the submission is that s.28ceased tobeoperative asrespectsthe Republicasanemployer,in view ofthe provisions of Article 188.1, savingonly those pre-Constitution laws that are reconcilable with the Constitutional provisions, including Article
- And given that 35 Article 172 defines compiehensively the liability of the Republic for wrongful acts of its servants, independently of prior authorisation or subsequent ratification, any attempt to lim't this liability, such as that made in s.28 - Cap.148, would be unconstitutional as a clear violation of the express provisions 40 of Article
- 942 \ \ 1 C.L.R. Georghlou v. Attorney-General Pikis J. Reference was made to two decisions of the Supreme Constitutional Court, notably Phedias Kyriakides v. The Republic, 1 R.S.C.C. 66, and Eleni Vrahimi &Anotherv. The Republic, 4R.S.C.C. 121,sheddingsomelight.ontheambit ofArticle172, 5 and the nature of the liability of the State for wrongful acts of its officers or authorities of ihe State. Article 172 confers,it washeld, anactionable righ.for wrongful act., of officers of the Republic, notwithstanding the abunce of a law envisaged by Article 172, regulating ihe liability of the Republicinthearea 10 under consideration. Counsel for the Republic concuned to ihis view of ihe law, bui, contrary to counsel for the appellant argued that the liability under Article172is subject totheprovisions of Cap.148defining tortuous acts until the enactment of the law envisaged by Article
- The Civil Wrongs Law, to 15 the extent that it was not irreconcilable with the provision! of Article 172, qualified as a law, regulating the liability of the Republic for wrongful acts of its servants. In his submission, the only direct effect of Article 172,was to do away with s.4(l) of the Civil Wrong'! Law, barring proceedings against the State 20 for the civilwrongs ofitsservants, a section ofthelawdeclared unconitituiional in the case of Kyriakides, supra. The nature oftheliability ofthe Slateunder Article 172,wasthe subject of a study by the learned Attorney-General, published in the Cyprus Law Tribune (see Cyprus Law Tribune, 5th year, Part 25 5 - 6), a study to which both counsel made reference. The author identifies the several aspects oftheproblem and suggests possible solutions. It becomes necessary to examine closely in the first place,the wording ofArticle 172, especially inviewotjudicial pronounce30 ments in Kyriakidesand Vrahimi,supra, that it confers by itself,aclionalbe rights. Itisincontrovertible thatin Kyriakides, the Supreme Constitutional Court took the view that the provisions ofArticle 172aredeclaratory and definitive ofthe rights created thereunder, as to be capable of enforcement without 35 further regulation. It is worthy of notice that the Court of Justice ofthe European Communities took a similar viewof the provisions of Article 119 of the Treaty of Rome, prescribing equality inthesphere ofsocial action, and held that an actionable right vested without further definition of the right in Mu40 nicipal laws. (See, McCarthy'sLimitedv. Smith [1981] 1 All E.R. 111). 943 Pikis J. Georghiou ?. Attorney-General
(1982)Article 172: Article 172 provides:-* Ή Δημοκρατία ευθύνεται δια πασαυ ζημιογόνον δδικον ττραξιυ ή* τταράλειψιν των υπαλλήλων ή άρχων της Δημο κρατίας έν τη ασκήσει τών καθηκόντων αυτών ή κατ* έττίκλησιν ασκήσεως τών καθηκόντων αυτών. Ό Νόμος θέλει καθορίσει τά περί της ευθύνης της Δημοκρατίας". 5 In the English text of the Constitution, the phrase "ζημιογό νος άδικος πράΕις" does not literally reflect the Greek text unless the expression "wrongful act or omission", which is met in the English translation, is interpreted as a term of art 10 encompassing, as the Greek text lays down, injurious unjust acts or omissions. Article 172 may appropriately be divided into three parts, considering the three themes it deals with. The patt dealing with (a) the nature of the acts for which the Republic may be held liable, 15 (b) the extent of its liability, and, lastly, (c) the need to regulate comprehently by law matters incidental to such liability. Injurious unjust {wrongful) act or omission (ζημιογόνος άδικος 20 πράξις ή παράλειψις)
Article 172
: An injurious act or omission is one that causes damage or pro duces adverse effects to the rights of theperson affected thereby. F o r t h e injurious act or omission to be actionable, it must be "άδικος" - unjust (wrongful). "Unjust" or "wrongful" 25
Article 172, signifies an act committed without authority or justification in law.
The authority of officers of the State emanates from the law or laws setting up their office, defining their duties and regulating their discharge subject, always, to the fundamental provisions of the Constitution and 30 notions of good administration. Abuse of authority or office lies at the root of the liability of the Republic for acts or omis sions of its officers, both in thefield of public as well as private law. Liability attaches not only when the wrongful act occurs in the discharge of their duties but also in the course of the 35 purported discharge of their duties. The relevant expression * An English translation of Article 172 appears at p. 939 ante. 944 1 CX.tt. \ Georgbtou v. Attorney-General Pikis J. in the\ Greek ;ext of the Constitution "κατ* εττίκλησιν", importsliability whenever the wrong is done, by invoking the officei's powers. The word "purport", used in the English text, must be understood in this sense. "Κατ*επίκλησιν", 5 connotes acts ostensibly or purpoitedly within an officer's authority,but not so inactual fact, as a matterof lawful authori ty, The State is similarly liable for wrongful acts committed because of misappreciation or misconception of an officer's duties arising'from a bona fide mistake, as well as for acts or 10 omissions involving a deliberate abuse of powers fraught with mala fides. In short,it covers acts seemingly attributable to the authority of ihe actor's office but outside the realm of his au thority, as defined by law. The liability of the State under Article 172 extends to wrong15 tul acts or omissions committed or suffered in the domain of both public a. well as private law, subject to this qualification. Where the wrongful act is committed in the field of public law, its annulmentunder Article 146 is a prerequisite to a civil action under Article 146.6 of the Constitution. (See, Kyriakides, 20 supra, and TheAttorney-Generalv. A. Marcoullidesand Another
(1966)1 C.L.R. 242). The invsstigation of crime,as wellas the action of the police, relevant thereto, are acts not cognisable under Article 146 because of their close association with the criminal process and judicial proceedings that may follow 2 5 (see, Andreas N. Gavris v. The Republic, 1 R.S.C.C. 88, and Phedias Kyriakides v. The Republic, 1 R.S.C.C. 66). Hence, wrongful acts or omissions in this area may be the subject of an accion before a civil court. The authority and duties of members of the police force are 30 defined by the Police Law, Cap.285, and Regulations made thereunder. Nowhere do they warrant or permit the use of 'orce in the discharge of their duties. Nor could, the grant of iuch power, be reconciled with thebasic provisions of theCon stitution safeguarding fundamental human rights, including 35 security of person and physical integrity (see Articles 8 and 11.1 of the Constitution). The law that may regulate civil liability under Article 172: The Constitution envisages the enactment of a law regulating 945 Pikis J. GeorgfaioD τ. Attorney-General
(1982)the liability of the State. The existence of the right ii not conditioned ontheenactment of any law but its exercise may be controlled by law. The controlis incidental to the presence of the constitutional right and subject to it. An example of this control is furnished by the enactment of s.57 of Law 14/60, 5 providing that proceedings against the Republic may be insti tuted by suing the A;torney-General (Kyriakides, supra). But nolaw canlimittheambit orscope of theright. That would be unconstitutional, becauie Article 172is definitive of the liability of theState,as wellas therights of aparty injured as a result of 10 acts for which the State is liable in accordance with its provi sions. Article 172 does not make the presence of liability of the State dependent on the enactment of a law. Such liability is clearly and succinctly defined by the Constitutionitself. No law can derogate therefrom. Consequently, the power of the 15 State to regulate such liability is limited tomatters incidental to theexistence of Stateliability, such as themeasure of damages, the burden of proof and other procedural matters associated with the exercise of the right. To the extent that Cap.148 regulates the establishment of liability at civil law, it may be 20 legitimately regarded as a legislation regulating State liability but always subject to Article 172 and lack of freedom of the State to limit the extent of the right. What is certain, is that the liability of the State under Article 172 is not co-extensive or co-incidental with the liability of a master for thewrongs of his 25 servants under Cap.
- Liability under Cap.148 is not a pre requisite for liability under Article
- The liability of the State under Article 172 is pre-eminently a species of public law liability, whereas liability under Cap. 140 lies primarily in the filed of private law. 30 Thepolicyof thelaw: The approach elicited in thisjudgment, is consonant with a proper application of the concept of the rule of law and thevigilanceexpected of theState toensurethat its officers operate strictly within ihe limits of their authority and always for the purpose of advancing the wider aims o f the 35 law, requiring a healthy and just administration. The liability of the Statefor actsof its officers andState autho rities in contemporary jurisprudence: Stassinopoulos, in his work on the CivilLiabilityof the State, 946 \ 1 C.L.R. Georghiou v. Attorney-General Pikis J. makes an interesting and revealing study of the European juridical history on the subject-of State liability for acts of its organs and the evolution that took place over the years. (See, pp. 12-19,26,87-91 a n d p . l l l ; seealso Kyriacopoulos- Greek 5 Administrative Law - Vol. 2, pp. 474- 475). We may, with benefit, lecite in brief, the principal stages of this evolutionary process. .What emerges from this h-'storical study of State liability for acts of its organs and officers, is that liability is invariably dependent on what the State, as an organic entity, is 10 regarded as representing or personifying. It mirrors the process of development -owards achieving effective democratic institutions. At first, the State was treated as immune Irom liability for acts ot its servants. The State was not identified as an expres15 sion of the will of thepeople, nor wasit regarded as impersonally expressing their will. The head of the State, usually a king or a queen, governed as of righ;, and the precept that the king can do no wrong, found due expiession in the law. At that early era the State was beyond the control of the people and, neither legally nor"politically answerable to them. 20 The second itage of development was reached when State liability was recognised subject to the rules of private law. The State wasassimilated in regard to its servants to a private employer. Behind thisequation lied the beliefthat top administrators 25 exercised similar power;· to employees, dividing thereby public servants into categories, depending on the powers exercised. This theory took no stock of ihe fact that all public servants, whether high or low in the hierarchical ladder, have a similar duty to apply the law, each at his station, in the interests of 30 legality and sound administration. Public administration is not the exclusive business of any individual but thecollective responsibility of the Government as an institution of the State. Their authority derives from the law and from the law alone. In the third and final stage of development,the liability ofthe 35 State for acts of its officers and organs, isdefined, independently of rules of private law, a: a species ol public law liability. This approach gained roots from the recognition of thefact that law 947 Pikis J. Georgbiou τ. Attorney-General
(1982)is supreme,andthatit is theduty of therulers togivefull effect to the law as a fundamental aspect of their mandate to rule. The supremacy of the law, requiring equal obedience by all, by the governed and the governors, alike, helped to shapemodern conceptions of liability of the State for acts of its servants. 5 ; L ability arises from refusal, failure or omission to implement the law, or abuve ot its provisions. The precept of democracy that government is for the people, lies at the core of State lia bility for acts of its officers, ultimately theservants of the public. Consequently, hability arises whenever the administration 10 defaults in the discharge of its mission under the law, and as a result damage is caused to thecitizen. In Cyprus, where, as in the continent of Europe, there is a sharp cleavage between public and piivate law, it is essential to have regard to this historical perspective for a proper appreciation of Stateliability 15 under Article 172. In PantelisPetridesv. The Greek Communal Chamber and Another
(1965)1 C.L.R. 39, there are dicta supporting the interpretation asserted in this judgment to Article 172. They support that— 20 (
- a)Articles 146.6 and 172 are designed to regulate the liability of the State for wrongful acts of its servants in the domain of public law, and that (
- b)a fundamental objective of Article 172 is to ensure legality in the field of public administration. 25 Therelevance andapplicability ofs.2&of Cap.148 to ihe deter mination of the liabilityof the State underArticle 172: Section 28 of the Civil Wrongs Law, limiting liability of a master or principal for assaults of his servants tocases of express authorisation or subsequent ratification, derives its origin from the Palestine Ordinance. It found its way in the Civil Wrongs Code in 1953. In our judgment, it is irrelevant to the deter mination of the hability of the State for assaults committed by officers of the Republic, for the following reasons: 30 Section28was incorporated in thestatute in thecontextof the 35 sum total of the provisions of the Civil Wrongs Law, including those of s.4(l), expressly prohibiting an action against the State 948 1 C.L.R. Georghiou v. Attorney-General Pikis J. I for civil wrongs of its servants, since found unconstitutional (see Kyriakides, supra). It does not aim to regulate liability under Article 172 for injurious unjust acts of the officers of the Republic committed in the exercise or purported exercise 5 of their duties. In short, it has no relevance to the liability of the State for acts of its servants. If s.28 is at all relevant, it comes in conflict with Article 172 to the extent that it limits the liability of the Republic for certain manifestly wrongful acts contrary to the very letter of the aforesaid article of the 10 Constitution. If s.28 was held to be reconcilable with the Constitution, it would open the door tothe State, limitingits liability for a variety of wrongful acts, neutralizing thereby the mandatory provisions of the Constitution that make no distinction between the wrongful acts in the sense of Article 172 for which 15 the State may be held liable. So, on either view of the law, s.28 has no bearing on this case. The facts relevant to the assault: Th; judge found that the plaintiff suffered the minor injuries he complained of in the hands of the police and that members of thepolice force assault20 ed him and inflicted upon him the injuries sustained. This findingcannot bedisturbed. Thereisampleevidenceto support it. It is sustained. The evidence of the plaintiff on the identity of his assailants wasfound bytheCourt to beunreliable. That could not change 25 the liability of the Republic giventhat the assault was committed by members of the police force, be it unidentified. What had to be established was whether the assault was committed in the exercise or purported exercise of their duties. The notion of "exercise of duty" is fairly straight forward. It involves 30 the execution of duties oidained by law, and covers cases of damage arising from the wrongful execution of their lawful duties whether intentional or accidental. Purported exercise of duty encompasses wrongful acts in the sense of Article 172, committed by officers or authorities of the Republic while 35 professing or claiming to carry out duries associated with their office but not so in fact or law. In other words a case of abuse of office. The learnedjudge in this case held that but for the provisions of s.28—Cap. 148, he would have adjudged the Republic to 949 Pikis J. Georghiou τ. Attorney-General
(1982)pay damages for the unlawful acts of members of the police force, on the ground that the assault was committed in the course of taking a statement. What the trial judge said, is lhat the assault was committedin the course of exercising their duties. The damages were estimated between £70.-and £80.-, a fair assessment having regard to the injuries sustained but would bedisposed tohold,hadtheybeenanswerable indamages, the Republic liable to pay exemplary damages put at £500.-. 5 Damages: The trial judge estimated the damage suffered by the appellant lo range between £70.- and £80.-. Notwith- 10 standing the inclusion, in the notice of appeal, of a point challenging thepropriety of theaward, allegedly low, the matter was not pressed before us. Rightly so for, having regard to the injuries suffered, the estimated compensation was fair and adequate. The culprits would, if personally sued, be liable 15 to exemplary damages because servants of the State, guilty of oppressive or unconstitutional conduct in abuse of their powers, are liable to exemplary damages. (See, Rookes v. Barnard [1964] 1All E.R. 367; Cassell & Co. Ltd. v. Broome [1972] 1 All E.R. 801; Drane v. Evanghelou [1978J 2 All E.R. 20 437; Papakokkinou v. Gunther
(1982)1 C.L.R. 65). That does not solve the problem for there is nothing in Article 172 tosuggestthattheliability oftheStateisnecessarily co-extensive with that of the wrongdoer. Article 172 lays down that the Republic is liable for theinjury caused by theofficer's wrongful 25 act. "Injury" inthissense,suggestslossanddamageremediable by an appropriate award of damages restoratory of the rights of the injured party. This is achieved by awarding compensa tion sufficient to achieve the above end. Theconcept of exem plary damages imports an element of punishment directed 30 against the wrongdoer. There is, in principle, little room for punishing anyonefor theunconstitutionalacts of his employees. If anything, the employer is himself the victim of suchconduct by having to compensate those injured thereby. Only when the employer encourages the unlawful could one justify exem- 35 plary damages against one for the acts of his servant. This view is shared by Harold Luntzin his work on the "Assessment of Damages" (see paras. 1220 and 1814). Therefore, the Republic, in theabsence of any suggestion thatthey encouraged the unlawful conduct of the policemen, if held responsible, 40 950 1 C.L.R. Georghiou τ. Attorney-General Pikis J. they are only liable to compensatory damages between £70.and £80.-. But has liability been proved? The facts relevant to liability. The finding that the assault was committed while the policemen were taking a statement 5 from the appellant, i.e. while endeavouring to carry out their duty, is not properly warranted by the evidence of the appellant, the only witness who testified on thecircumstances of the assault. The judge came to this view without a proper evaluation of the circumstances surrounding the assault, as the case levealed 10 by the printed record. Nothing that is said here should be construed as suggesting that the evidence before Ihe Uial Court could noi, on a proper evaluation, result in a finding that the assault was committed while the members of the police involved purported to exercise their duties. That evaluation, however, 15 is the province of the trial Court, not the task of the Supreme Court. Therefore, after a thorough debate of the subject among us, we have decided to remit this factual issue for retrial and we so order. The remaining facts are sustained, i.e. that appellant was assaulted by members of the police force at Paphos 20 Gate police station and that his damage amounts to £75.-. Thetrial Courtmust resolve the factual issue, whether the assault was committed by the police in the purported exercise of Lheir duties, guided by the principles expounded in this judgment. 25 In the result, the appeal is allowed in part. The case is renutted for retrial of the issue specified in this judgment. Appellant is entitled to his costs on appeal but costs before the trial Court will be costs in the cause. Appeal partly allowed. Order for costs as above. 951