clr/1983/1983_2_363.pdf

(1983)else in Cap. 96, taking away the right to a private prosecution; that, however, only where the rights of an individual are directly affected, as in this case where, allegedly, the illegal structure was erected upon his land, a right to prosecute accrues and that in every other case the body entrusted by law for its enforcement is the appropriate authority. 5 Per Triantafyllides, P.: That the provisions of section 20 of Cap. 96, as well as those of section 21 of the same Law, lead, by inevitable implication, to the conclusion that obligations created by Cap. 96, and by H) delegated legislation made thereunder, can, as a rule, be enforced only by proceedings instituted by the "appropriate authority" concerned, as defined in Cap. 96, and not by private criminal prosecutions; that this viewfindssupport inthe relevant principle of law which establishes that obligations created by a statute 15 can, as a rule, be enforced only in the manner specified therein (see, inter alia, London Boroughof Southwark v. Williams [1971] 2 All E.R. 175, 179);exceptionally, however, a private individual whose immovable property is actually encroached upon unlawfully as a result of a violation of the provisions of Cap. 96, 20 or of delegated legislation made thereunder—as it is alleged bythe appellant to bethe situation in thepresent case—is entitled to resort not only to his remedies in civil law but, also, to the remedy by means of a private criminal prosecution. Appeal allowed. Cases referred to: R. v. Raymond [1981] 2 All E.R. 246 (C.A.); R. v. West London Justices [1979] 2 All E.R. 221 (C.A.); Crane v. D.P.P. [1921] All E.R. Rep. 19 (H.L.); Bishop of Rochester v. Bridges [1831] : B. & Ad. 847 at p. 859; 30 Pasmore v. Oswaldtwistle U.D.C. [1895-1899] All E.R. Rep. 191 (H.L.); London Borough of Southwark v. Williams [1971] 2 All E.R. 175 at p. 179; Raymond v. A.G. [1982] 2 All E.R. 847 (C.A.); 35 Gouriet v. Union of Post Office Workers [1977] 3 All E.R. 70 at p. 97 (H.L.); R. v. Metropolitan Police Commissioner, Ex parte Blackburn [1968] 1 All E.R. 763 (C.A.). 364 25 2 C.L.R. Ttofinis v. Theocharides Appeal against acquittal. Appeal by Panayiotis Ttofinis, with the sanction of the Attorney-General of the Republic, against the judgment o\' the District Court of Famagusta, EliadesD.J., given on the 16ih 5 June, 1983 (Criminal Case No. 411/83) whereby the respondents wereacquitted of the offences of building without a permit contrary to sections 3(l)(b), 20

(1), 20(3Xa)(b), 20

(2)(iii) and 203A of the Streets and Buildings Regulation'Law, Cap. 96(as amended) and of erecting a building contrary to the conditions of the 10 permit contrary to sections 3(l)(b),9, 20(l)(a)(b)(d), 20

(3)(a){b). 20

(2)(iii) and 203A of the above law, respectively. G. Pittadjis, for the appellant. A. Poetis, for the respondents. Cur. adv. xuli. 15 TRIANTAFYLLIDES, P.: The first judgment of the Court will be delivered by Pikis, J. PIKIS, J.: The appellant, Panayiotis Ttofinis, laid a charge for approval before the District Court of Famagusta, accusing the respondents, Loizos Theocharides and Andreas Nouros, 20 of infringement of the provisions of the Streets and Buildings Law. Two alternative counts were preferred, charging the accused with building without a permit, or erecting a building contrary to the conditions of the permit. Allegedly, the offensive building was built, in part,on land of the complainant. 25 The charge was approved and the accused were summoned to answer the charges. It may be noticed that the approval of a charge under s.43 of the Criminal Procedure Law—Cap. 155, is a judicial act* notwithstanding the fact that accused has no right to be heard at that stage.** 30 When the accused appeared befoie the Court, they disputed the validity of the charges, as they had a right to do and, invited the Court to dismiss the charges and discharge them from answering thereto. The challenge was voiced in the context of an application for an interim injunction torestrain the accused 35 from carrying out further building work. * R. v. GatesheadJustices [1981] I All E.R. 1027. · · R. v. Raymond[19S1] 2 All E.R. 246 (CA), and R. v. West London JusiUv* [1979] 2 All E.R. 221 (DC). 365 Pikis J. Ttofinis v. Tbeocfmrides 0983) The learned trialJudge,after hearingargument and reflecting on the rival submissions, decided that the charges were illfounded and proceeded to acquit and discharge the accused. In his judgment, the charges were incompetently laid because the complainant had.norightm law to prosecute the accused. 5 Only the Improvement Board of Ayia Napa had authority in law to prosecute the accused. Once the charges were found to be invalid ab initio, the order made ought to be limited to the discharge and not the acquittal of the accused. A verdict of acquittal is legitimate only when the accused is in peril of 10 conviction.* The arguments on appeal rivetted, as before the trial Judge, on two issues:(

1. a)The right of the citizen to institute criminal proceedings, that is the right to a private prosecution 15 and, (
2. b)the implications of sections 21 and 23 of Cap. 96, on the exercise of this right in relation to infringements of the Streets and Buildings Law, or regulations made thereunder. The learned trial Judge, while acknowledging that a private citizenhas,under ourlegalsystem,therighttoinstitutecriminal proceedings, provided he isaggrieved by the offensive act, this right was invalidated or ousted by virtue of the provisions of s.21, establishing a special procedure for compelling local 25 authorities to discharge their duties, including the prosecution of offenders for violation of the provisions of Cap. 96. Recalcitrant local authorities may be called to task, and their default remedied, in the manner provided by s.21. Under s.21 the Council of Ministers may require, in the first place, the 30 local authority to carry out their duties under the law. In case of non-compliance, their omission may be put right by theappointment ofa person ora Board toremedytheir default attheexpenseofthelocalauthority. ThetrialJudgeconcluded that s.21 rendered theImprovement Board ofAyia Napa solely 35 responsible for the prosecution of offences under Cap. 96 and regulations made thereunder, to the exclusion of everybody * Craw v. D.P.P. [1921]All E.R. Rep. 19(HL);sec,in particular, thejudgment of Lord Pasmore. 366 20 2 C.L.R. Ttofinis v. Theocharides Pikis J. else, including an individual injured as a result of the alleged violation. For his view he derived support from the principle enunciated in Doe d. Bishop of Rochester v. Bridges

(1831)1 B.&Ad. 847, 859, and echoed in subsequent decisions appro5 priately depicted at p. 859: "Where an Act makes an obligation, and enforces the obligation in a specified manner, we lake it to be a general rule that performance cannot be enforced in any other manner". (Also see Pasmorev.Oswaldtwistle U.D.C. [1895-1899] All England Law Reports, Rep. 10 191 (HL), and Borough of Southwark v. Williams [1971J 2 All E.R, 175 (CA) ). In order to dispose of this appeal, we shall first examine the right to a private prosecution and explore its origin and, then, consider the implications of s.21—Cap. 96, in the light of the 15 decision of the trial Court. At common law, ihe right to prosecute is private. A right to prosecute vests in every citizen injured by the criminal act. In iU early stages of development, the lawwasvindicated byaccording duesatisfaction to thevictim of crime. In those days no distinction was drawn between 20 criminal and tortuous acts. All injurious acts were punishable at the instance of the injured party by a process of self-hslp. It was the responsibility of the injured party to bring the culprit tojustice (the subjsct is discussed in The Rule of Law in Britain, by Antony Babington, p. 25, and The English Common Law 25 and Doctrines of Equity and their Application in Cyprus, p. 14 (publication in Greek). The number of private prosecutions dropped' significantly in thenineteenth century, withtheestablishment of an oiganised Police Force and assignment to it of responsibility for the 30 detection and prosecution of crime and the creation in 1879 of the Office of the Director of Public Prosecutions. The Director of Public Prosecutions was entrusted with power to prosecute, as well as supervise the process of prosecution of offenders. The establishment of machinery for the prosecution 35 of offenders by public authorities, did not change the nature of the prosecution that remained private in character. Moreover,thesettingup of machineryfor theprosecution of offenders by persons other than the injured party, was in addition and not in substitution of the right of the injured party to prosecute, 40 subject to the power of the Director of Public Prosecutions to 367 Pikis J. Ttofinis v. Theocharides

(1983)take over or interfere with a private prosecution for the purpose of aborting it (see, Raymond v. A-G [1982] 2 All E.R. 487 (CA). Re Cyprus Article 113.2 of the Constitution). A private prose­ cution is still regarded at common law as a fundamental consti­ tutional right of the 'citizen, the importance of which has not 5 been minimised by the creation of public authorities for the prosecution of crime, in the words of Lord Diplock inCouriet v. Union of Post Office Workers [197η 3 All E.R. 70, 97 (HL), "it exists and is a useful constitutional safeguard against capri­ cious, corrupt or biased failure or refusal of those authorities 10 to prosecute offenders against the criminal law". Compared to the early days of the common law, the prosecution of crime is nowadays regarded as pre-eminently a public duty. But, as acknowledged in R. v. Metropolitan Police Commissioner, Ex parte Blackburn [1968] 1All E.R. 763 (CA), the prosecution 15 of crime cannot in law be regarded as the exclusive province of any authority. No public authority can rank above the law. In myjudgment, the right of a private prosecution symbolizes the common interest in law enforcement. Also, it earmarks the interest of victims of crime to invoke thecriminal arm of the 20 law for their protection, a right not subordinated to the exercise of discretionary powers by a public authority, except in the face of clear language. Theposition in Cyprus with regard to private prosecution, is very much similar to that obtaining in England. Section 29(l)(c) of the Courts of Justice Law—14/60, makes, 25 in the absence of statutory provision to the contrary, the com­ mon law applicable in Cyprus, whereas sections 20, 23 and 24 of the same Law define the criminal jurisdiction of the Courts, solely by reference to the nature of the offence and the locality where it is committed in the case of territorialjurisdiction. The 30 Criminal Procedure Law, Cap. 155, on the other hand, makes English Criminal Procedure Law applicable, unless inconsistent with special provisions of our law, whereas s.37 makes the commencement of criminal proceedings dependent on the approval of the charge without postulating emanation of the 35 proceedings from any particular source as a precondition. There is nothing in the Constitution neutralising the position at common law as regards private prosecutions. On the contrary, Article 113.2 is an empowering enactment conferring wide powers upon the Attorney-General with regard to prose- 40 368 2 C.L.R. Ttofinis v. Theocharides Pikis J. cution, in addilio? and not in derogation of those vesting in other persons or authorities. Likewise, the power conferred upon Police authorities to prosecute under s.17

(2)and s.19 ofthePoliceLaw—Cap.285,isnot exclusivebut supplementary 5 to the right of the victim of crime to prosecute the ;uspect. Not every individual has the right of private prosecution. Onlyvictims ofcrimehavethis right. Unlike the Roman Law. the common lawnever recognised actio popularis in any sphere of the law. 10 Thenextquestion is,whether Cap.96oftheStreetsand Buildings Law vested, in local authorities, by virtue of s.21 or any provision, exclusive power to prosecute offenders for contraventions of the provisions of the law. The answer is in the negative. Certainly, s.21 does not purport to confer exclusive 15 powers upon appropriate authorities to prosecute transgressors ofCap.96orregulationsmadethereunder. Allitaccomplishes, is to establish a procedure for remedying defaults of "appropriate authorities" in the discharge of their duties, including failures to prosecute offenders. There is nothing 20 in s.2l, or anywhere else in Cap. 96, taking away the right to a private prosecution. The principle in Doe and subsequent decisions is, as we comprehend it, simply this: Where a law establishes a procedure for bringing administrative authorities to reckoning unless that procedure isfirstexhausted, the Court 25 will, in the exercise of its discretion, withhold the issue of a prerogative writ. We would only be justified to uphold the ruling of the trial Judge if the Streets and Buildings Law provided that no one, other than an appropriate authority under the law, had the right to prosecute offenders. Section 30 21isiirelevantto theright ofaprivateprosecution. Therefore, the decision of the trial Judge must be reversed. Byallowingtheappeal itmustnot beassumedthat wedecide thatacitizen,howeveraffected bytheviolationsoftheprovisions of Cap. 96 or regulations made thereunder, has a right to pro35 secute the offender. On the contrary, as explained in this judgment,therighttoprosecutevestsonlyinthevictim ofcrime. Only where the rights of an indivudual are directly affected, as in this case where, allegedly, the illegal structure waserected upon his land, a right to prosecute accrues. In other words, 369 Pikis J. Ttofinis v. Theocharides

(1983)there must be direct encroachment upon one's rights in order to sustain a private prosecution. In every other case the body entrusted by law for its enforcement, is the appropriate authority. In consequence, the owner of adjoining property does not have a right per seto move the machinery of the law 5 whenever his neighbour builds on his own land in violation of the provisions of Cap. 96. Lastly, to allay the fears of the learned trial Judge that the acknowledgmentofaprivateprosecutioninrespectofviolations of Cap.96,and regulationsmadethereunder,may lead todupli- 10 cityof proceedings, wemay remind that the Court has inherent powers to control proceedings before it witha viewto avoiding multiplicity. Intheresult, theappeal isallowed. Thecasewillberemitted back to the trial Judge, with a direction to hear and determine 15 the case. The respondents shall pay the costs of this appeal. The appeal is allowed with costs. TRIANTAFYLLIDES P.: I have had the benefit of reading in advance thejudgment which hasjust been delivered by my brother Judge Mr. Justice Pikis and I am broadly in agreement 20 with him as regards the outcome of this particular case. I would like, however, to formulate as follows my own, somewhat more limited, approach to the matter of the right to institute a private criminal prosecution for a contravention of a provision of the Streets and Buildings Regulation Law, 25 Cap. 96, and of delegated legislation made thereunder: In my opinion it is essential to bear in mind in this respect not only the provisions of section 21 of Cap. 96, to which I do not think that I should refer in detail, but, also, those of subsections

(3),

(4),

(5)and

(6)of section 20 of Cap. 96, as 30 amended bytheStreetsand Buildings Regulations(Amendment) Law, 1963 (Law 67/63), which read as follows: "

(3)In addition to any other penalty prescribed by this section, the Court, before which a person is convicted for any offence under subsection

(1), may order— (

1. a)that the building or any part thereof, as the casemay 370 35 Ζ C.L.R. 5 10 Ttofinis v. Theocharides Triantafyllides P. be, inrespect of whichtheoffence has beencommitted shall be pulled down or removed within such time as shallbespecified insuchorder,butinnocase exceeding two months, unless a permit is obtained in respect thereof in themeantime from the appropriate author­ ity: Provided that such authority may, in granting such permit, impose such terms and conditions as to it may seem fit and the provisions of section 4 of this Law shall apply to every such permit; . (
2. b)the person convicted to pay the costs of the proceed­ ings and any fees connected with the charge, which such person ought to have paid and which he failed or refused or neglected to pay. 15 20 25 30 35 (3A) ,

(4)If any person against whom an order has been made under the provisions of subsection

(3)or (3A) shall fail or neglect to comply with such order within the time specified therein, it shall be lawful for the appropriate authority to carry out such order and any costs incurred for the carrying out thereof shall be payable to the appiopriate authority by the person against whom the order was made and such costs shall be deemed to be a penalty within the meaning of the Criminal Procedure Law, and payment thereof shall be enforced accordingly.

(5)Any person against whom an order has been made undersubsection

(3)or(3A) whodisobeysorfails tocomply with such order shall, notwithstanding that the appropriate authority has proceeded to carry out or has carried out such order, be guilty of an offence and shall be liable to imprisonment not exceeding three months or to a fine not exceeding fifty pounds or to both such imprisonment and fine.

(6)Allfinesrecovered inrespect of anyoffence committed against this section shall be payable to the appropriate authority concerned". The above quoted provisions of section 20 of Cap. 96, as well as those of section 21 of the same Law, lead, in myview, 371 Triantafyllides P. Ttofinis v. Theocharides

(1983)by inevitable implication, to the conclusion that obligations created byCap.96, and by delegated legislation made thereunder,can,asarule, beenforced onlybyproceedingsinstituted bythe"appropriate authority"concerned, asdefined inCap. 96, and notbyprivate criminal prosecutions; andthis viewofmine 5 findssupport in the relevant principle of law which establishes that obligations created bya statute can,asa rule, be enforced only in the manner specified therein (see, inter alia, London Borough of Southwark v. Williams, [1971]2All E.R. 175, 179). I am, however, prepared to accede to the proposition that, 10 exceptionally, a private individual whose immovable property is actuallyencroached upon unlawfully asa result ofaviolation of the provisions of Cap.96, or of delegated legislation made thereunder—as itisalleged bytheappellant to bethe situation in thepresentcase—is entitled toresort notonlytohisremedies 15 in civil law but, also, to the remedy by means of a private criminal prosecution. I leave open, at this stage, in order to consider it further, if and when the occasion arises, the iisue of whether or not encroachment upon the proprietary rights of a person in 20 a manner other than that alleged in the present case might entitle him to file a private criminal prosecution in respect of a violation oftheprovisions ofCap.96orofanydelegatedlegislation made thereunder. In the light of the foregoing I agree that this appeal should 25 be allowed and that the trial Court should proceed to try this case on the basis of the charge which has been filedon behalf of the appellant. I should point outthat, inany event, it was not a proper course for the trial Court to acquit and discharge the 30 respondents, as it appears to have done, because there wasno trial of the case on its merits and the trial Court merely held thatit lackedjurisdiction;consequently, therewas nopossibility in law of convicting or acquitting the respondents as accused persons. _ TRIANTAFYLLIDES P.: Mr.Justice Loris,whohasalsoheard 372 35 2 C.L.R. Ttofinis >. Theocharides Triantafyllides P. this case, is not with us today as heis, unfortunately, indisposed. but Mr. Justice P'kis is authorized by him to read his judgment. PIKIS J.: 1 will read what has been already written down and sent to me by my brother Judge Mr. Justice Loris. 5 LORIS J.: I am in agreement with the judgment of Mr. Justice Pikis. I have nothing to add. TRIANTAFYLLIDES P.: In the result this appeal is allowed with costs and this case should now be heard by the District Court before which it is pending. 10 Appeal allowed. Retrial ordered. 373