1 C.L.R. 1983 February 9 [L. LOIZOU, DCMETRIADES. PlKlS, JJ.] ANDROMACHI COSTA ALEXANDROU THROUGH HER ATTORNEY-REPRESENTATIVE COSTAS ALEXANDROU, Appellant ATTORNEY-GENERAL OF THE REPUBLIC. Respondenι (Civil Appeal No 63I 11 5 10 15 20 25 Constitutional Law—Liability of the Republic under Article \12 of the Constitution—Prerequisites—Such liability not dependent on the commission of a civil wrongunder the Civil Wrongs Law. Cap. 148 or on the concept of vicarious liability—Unlaujul occupation of appellant's property by displacedpersons—Claim for damages against the Republic due to alleged ratijication of such occupation by its servants—No evidence tending to establish prerequisites of liability under Article 172. Following the Turkish invasion of Cyprus in the summer of 1974 about 250 refugees took refuge in the semi-completed block of flats of the appellant at Nicosia and remained there for a number of years until accommodation was made available for them by the Government. No steps were ever taken against the occupants either to secure their eviction or recover damages from them. The appellant sued the Republic for damages claiming that it was legally responsible for the occupation of their properly by the refugees and was answerable in law for the loss suffered in consequence. In order to cope with the problems of displacement a special service was set up under the name Care and Rehabilitation of Displaced Persons ("Care"); and the appellant rested her case on a promise by Care Officials to compensate her in due course. Her claim was pegged to the one sounding in tort for the ratification of the trespass. The trial Court did not accept the contention that the unlawful occupation 41 Alexandrou v. Attorney-General (19S3) of appellant's property was on any occasion latified by Government and dismissed the action. Hence this appeal. According to the evidence all that the Care Officials did in relation to the occupation of the property was to offer humanitarian relief to the occupants. 5 Held, for the Republic to be held liable under Article 172 of the Constitution there must in the first place be an unjust ("adikos") act or omission; that an unjust act is one committed without authority in law; that where the doing of an act is sanctioned by law, no liability can conceivably attach to the 10 Republic; that, secondly, the unjust act or omission must be productive of damage; that, thirdly, the injurious act, must have been committed in the exercise or purported exercise of the duties of the officers or authorities of the State; that the State is liable for acts committed in the exercise of an officei's 15 duties when the latter deviates, exceeds or abuses his authority while carrying out his duties; that "purported exercise of duty" encompasses cases where the officer, while apparently engaged in the process of carrying out his duties, he is not so acting as a matter of law or fact; that abuse of authority or office 20 lies at the root of liability of the State under Art. 172; that the liability of the State is not necessarily dependent on the Commission of a civil wrong under the Civil Wrongs Law, Cap. 148 or on the concept of vicarious liability; that in this case there was no evidence tending to establish the prerequisites 25 of liability under Article 172; accordingly the appeal must fail. Held, further, that the only way the Republic could assume responsibility in law for the occupation of the property outside a contractual arrangement was through the provisions of the Requisition of Property Law 21/62; that Care Officials had 30 no authority in law to effect requisition; that, therefore, the alleged acts of encouragement could not conceivably be committed in the exercise or purported exercise of their duties because an officer can only be said to be acting in purported exercise of his duties if he has authority in law to do the acts 35 he professes to do in the name of that authority. Appeal dismissed. Cases referred to: Eastern Construction Co. v. National Trust Co. [1914] A.C. 197 at p. 213; Georghiou v. The Attorney-General
(1982)1 C.L.R. 938. 42 40 1 C.L.R. Alexandrou v. Attorney-General Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Stylianides, P.D.C. and Fr. Nicolaides, D.J.) dated the 18th August, 1981 (Action No. 519/78) whereby her 5 action for £54,120-for lossof useor profit for wrongful occupation of her property by displaced persons due to the Turkish invasion was dismissed. E. Efstathiou, foi the appellant. Gl. Hji Petrou, for the respondent. '•0 Cur. adv. vult. L. Loizou J.: The judgment of the Court will be delivered by Pikis, J. PIKIS J.: The appellant is the owner of a building made up of 18 apartments, three-bedroomed and two-bedroomed. 15 spread over five storeys, at Nicosia, not far from the Hilton Hotel. In the summer of 1974 the building was under construction. There wasa lot to bedone before being rendered habitable. Nevertheless it could offer shelter to those displaced and dispossessed bythe Turkish invasion who in their thousands 20 were asking for a roof over their head. Some of them, about 250 in number, took refuge in the semi-completed block of flats of the appellant and in their misery took comfort therein. The appellant and her family were themselves refugees from the Kyrenia District who left their home at Vassilia in the wake 25 of the Turkish invasion. At first they raised no objection to the occupation of their property by their fellow-refugees. The husband of the appellant, who testified on her behalf, explained that he awaited the return of Archbishop Makarios before defining his future plans with regard to the building. Con30 sequently he suffered the occupation of his property and refrained from making any request to the occupants to vacate the building. He took no steps whatever in that direction until much later when he secured a loan for the completion of the building. This happened when the shattered economy of the 35 country began to pick up and loans were made available in order to stimulate economic activity. In the meantime the occupants of the building had to content with the vicissitudes of living in an unfinished building lacking 43 I'ikis J. Alexandrou v. Attorney-General
(1983)basic facilities and conveniences, such as toilets and sewage and inadequate water supply. Awater tap on the ground floor was ihe only source of water supply for the entire building. When the appellant secured a loan, efforts were stepped up to obtain vacant possession. These efforts bore no fruit for quite 5 some time because of the refusal of the refugees in occupation to vacate the premises until arrangements were made by the Government for their rehousing. Steps were taken in that direction but time was needed to accomplish the task. So far as one may discern from the evidence before the trial Couit, 10 the building was not vacated until arrangements were made for the housing of the occupants in refugees' habitats. In order to cope with the multiple problems of displacement a special service was set up under the name of Care and Rehabilitation of Displaced Persons, hereafter referred to as 15 "Care", pursuant to a decision of the Council of Ministers in August,
- They were assigned the task of helping for the relief and rehabilitation of refugees. Care offered what relief was possible to the occupants of the building by way of supply of foodstuffs and essential appliances and utensils for the runn- 20 ing of their households. Also they made a limited financial contribution for the provision of water supply on each storey of the building and temporary arrangements for sewage. At some stage water supply was cut because of the omission or inability of the occupants to meet the cost. After repiesenta- 25 lions to Care the bills were paid as a measure of relief while denying responsibility for the charge and disputing liability. (See letter of the Director to the Water Board in the file under 16-17). What emerges is that Care provided rudimentary relief for 30 the-improvement of the otherwise pitiable conditions of living of the refugees. The assistance was by any standards limited to the minimum because of, no doubt, the magnitude of the problem and limited funds available to provide for the vast needs of refugees. 35 Itwas thecase for theappellantbefore the trialCourt that the Republic of Cyprus was legally responsible for the occupation of theproperty bythe refugees and wasanswerablein lawfor the loss suffered in consequence thereof. No steps were ever 44 1 C.L.R. Alexandrou v. Attorney-General Pikis J. taken, it seems, against the occupants either to secure their eviction or recover damage from them. Theappellant byhisstatement ofclaimascribedliabilitytothe Republic for the loss suffered in consequence of the wrongful 5 occupation of the property by displaced persons because of a series of acts committed by officeis of the Caie Department allegedly betraying approval and adoption on the part of the Republic of the wrongful occupation of ths propeity. The contention is that these officials facilitated the stay of refugees 10 in the premises by impioving their living conditions and by encouraging the occupants to remain in occupation. The evidence produced at the trial established what was indicated earlier in the judgment. Limited aid was given to make the stay of displaced persons tolerable. Two of the 15 occupants of the property gave evidence at the trial that an official of Care did encourage them to stay but, as they added. evenif theywanted to vacatethepremises, they had no alteinative but to remain in occupation until accommodation was made available by Government. 20 The appellant also rested her case, as vaguely hinted in the statement of claim and more explicitly stated by the husband of the appellant in evidence, on a promise by Care officials to compensate them in due course. Whatever one might makeof these allegations, this claim was pegged to the one sounding in 25 tort for theratification of thetrespass. Noclaim wasmade for damages for breach of contract and presumably none could be sustained, for the promise of the officials, even if accepted as correct - an allegation rejected by the trial Court - could not conceivably give rise to a contract because of the absence of 30 essential particulars regarding the basis upon which compensation would be paid. In any event the action wasnot cast in termsof breach ofcontract nor wasit at anystageargued along such lines. The appellant claimed (a) £54,120.- for loss of use or profit 35 for thewrongful occupation ofthepropertyinthecircumstances above mentioned and (b) £69,535.- loss for damage caused to the property. At thecommencement of the hearing the parties reached agreement on.the quantum of damages in elliptical terms, not disclosing the basis upon which agreement was 45 Pikis J. Alexandrou v. Attorney-General (198A) reached. All that the agreement provided for wasthat appellant would be entitled to £12,500.- if successful in the action. (See the minutes of the Court dated 10thJuly, 1981). Given the sepaiate nature of thetwoitems of damage claimed, itwas essential to specify what part of theagreed damages wasattti- 5 butable to either of the two heads of damage set out in the statement of claim. The trial Court in a well reasoned judgment dismissed theclaim asunsustainable inlaw and ill-founded in fact. They laid emphasis on a letter addressed bytheDilector of Care to theWater Board, detailing thecircumstances 10 under which payment of water bills wasmade and signifying the position of Government on the subject. (See file 16-17). Payment was made for purely humanitarian reasons, it was explained therein, while dissociating Government from any liability inlaw topaythese bills. Payment was made, asstated 15 in this letter, on an ex gratia basis. On a review of the evidence in its totality the trial Court dismissed the contention that the unlawful occupation of the property by displaced persons wason any occasion or under any circumstances ratified byGovernment andpointed out that 20 for ratification tobevalidly invoked intort there must beclear adoptive acts, relying ona statement of thelawonthe subject by Lord Atkinson in Eastern Construction Co.v.National Trust Co.. 11914] A.C. 197,
- The liability of the Republic for injurious acts of its officers 25 or authorities ofthe Republic came upfor consideration before the Supreme Court in Symeon Georghiou v. The AttorneyGeneral,decided on 12.11.82 (notyet reported)*. Wedwelt on the ambit andimplications ofArticle 172inanattempt to define the liability of the State for actsofits servants. Liability under 30 Art. 172.it washeld, is a species of public law liability, irrespective ofwhether theacts giving rise toinjury were committed in thedomain of private law. Theliability of the State isnot necessarily dependent onthe commission ofa civil wrong under the Civil Wrongs Law,Cap.148,or on theapplication of the 35 concept of vicarious liability ofa master foracts ofhis servants as encountered in Cap. 148or anyother law. Theliability of the State under Art. 172isinnowaycorrelated toliability ofthe master inprivate lawordependent onthecommission ofa tort at civil law. 40 ' * Now reported io
(1982)1 CLR.
- 46 1 C.L.R. Alexandrou v. Attorney-General Pikis J. Article 172defines the prerequisites for liability of the State for acts of its servants as well as the ambit of such liability. What may be regulated by law are matters secondary thereto. For the Republic lo beheld liable there must in the first place 5 be an unjust ("adikos") act or omission. An unjust act is one committed without authority in law. Where the doing of an act is sanctioned by law, no liability can conceivably attach to the Republic. Secondly, the unjust act or omission must be productive of damage. Thirdly, the injurious act, in the sense 10 above defined, must have been committed in the exercise or purported exercice of the duties of the officers or authorities of theState. TheState isliablefor actscommitted intheexercice of an officer's duties when thelatter deviates,exceeds or abuses his authority while carrying out his duties. "Purported 15 exercice of duty" encompasses cases where the officer, while apparently engaged in the process of carrying out hisduties, he isnot so acting as a matter of law or fact. It was pointed cut in the case of Georghiou (supra) that abuse of authority or office liss at the root of liability of the State under Art.
- 20 The first question to be answered in this appeal is whether there was evidence tending to establish the prerequisites of liability under An.
- We are of the opinion that on no view of the evidence could liability be ascribed to the Republic. Mr. Efstathiou urged strongly upon this Court that the finding 25 of the trial Court rejecting the evidence for the plaintiff that officers of Care encouraged the inmates of the building and the husband of the plaintiff to believe that Government would assume responsibility for the occupation of the premises by displaced tenants,is unsatisfactory. Even if wewereto sustain 30 this submission, the appellant would not be able to carry his casefurther or succeed in thisappeal. Theevidence wasvague and asfar as alleged communications with displaced persons to slay in the premises are concerned, they could hardly be construed as anything other than an attempt to comfort those in 35 need and engender in them a degree of hope. As far as the husband of the owner is concerned, the evidenceis vague and uncertain. If anything, it wasapt to create liabilities in contract, not in tort, and, as wepointed out at the outset, this case sounds exclusively in tort. Therefore, although 40 wefind the grounds upon which this evidence wasrejectedby thetrialCourtratherunconvincing,omissionfrom consideration of this finding could not help the appellant. 47 Pikis J. Alexandrou v. Attorney-General
(1983)The case for the appellant was framed and argued on the premise that the Republic was vicariously liable for acts of its servants under Cap. 148 and that through its servants it ratified the acts of displaced persons in entering the land of the appellant and putting it under their occupation. As indicated, Cap. 148 is not the framework for liability of the State. 5 Examining the evidence in the context of Art. 172, the picture emerging is the following: All the Care officials did in relation to the occupation of the property was to offer humanitarian relief to the occupants, something they were entitled to do. In 10 fact this was their duty. Further, their acts were in no way productive of injury. If anything, they limiled the damage that might otherwise be caused to the building especially by the provision of sanitary facilities and the installation of a sewage system. 15 The suggestion that the acts of Care employees evidenced anything like adoption of unauthorised entry or occupation of the premises is unrealistic in view of the evidence before the trial Court and totally devoid of substance. The only way the Republic could assume responsibility in law for the occupation 20 of the property outside a contractual arrangement was through the provisions of the Requisition of Property Law 21/
- Care officials had no authority in law to effect requisition. Therefore, the alleged acts of encouragement could not conceivably be committed in the exercise or purported exercise of their 25 duties. As earlier explained, an officer can only be said to be acting in purported exercise of his duties if he has authority in law to do the acts he professes to do in the name of that authority. In our judgment the premises for holding the State liable for 30 the occupation of the property by refugees, who found themselvesin the most necessitous circumstances, were never laid before the trial Court. The appeal fails. It is dismissed. However, we shall make no order as to costs considering that the appeal was taken before the decision of the Supreme Court in the case 35 of Symeon Georghiou v. The Attorney-General (supra) that explained the legal framework of liability of the State under Article
- Appeal dismissed. No order as to costs. 48 40