clr/1983/1983_3_605.pdf

(1983)account the books referred to in the sub judice decisions were imported: and she had entered into an agreement with applicants 2, 3 and 4 to import on their account some of the books mentioned in the sub judice decisions. At the commencement of the hearing of the recourse counsel for 5 the respondents stated that the respondents recalled both sub judice decisions and that notice of such recall in writing will be given to applicant No.l within the day adding at the same lime that the respondents were ready to submit to an order of the Court as applied declaring null and devoid of any legal effect the decisions in iO question. On the questions: (

1. a)Whether the Court should proceed in pronouncing the annulment of the subjudice decisions in view of the fact that both decisions were recalled: 15 (
2. b)Whether applicants 2, 3 and 4 have "existing legitimate interest"' as envisaged by Article 146.2 of the Constitution; (
3. c)Whether applicants should be awarded costs. Held, that an administrative act of '"limited duration", which before ceasing to be effective has produced results, can be 20 annulled even though the legal situation created by it has subsequently ceased to exist; that damages under Article 146.6 of the Constitution can only be sought after obtaining judgment in proceedings in a recourse under Article 146.1; that since there is a probability that damage might have been caused 25 to applicant No.l as a result of the sub judice decisions for the period during which they remained in force she is entitled both in law and in fact to obtain a judgment in these proceedings; accordingly the sub judice decisions must be annulled.

(2)That whatever agreement applicant No.l had entered into 30 with applicants 2, 3 and 4 in connection with the importing on their account some of the books mentioned in the sub judice decisions or the sale of such books to them after the importation of same, is a question of private law regulating contractual relations between applicant No.l on the one hand 35 and applicants 2, 3 and 4 on the other and thus applicants 2-4 have no existing legitimate interest as persons in the sense of Article 146.2 of the Constitution; that, further, applicants 606 C.L.R. 3 Kiltou and Others v. Republic do not have an existing legitimate interest as ''members of α community" or as "a class of persons": accordingly thei: recourse should fail. 5

(3)That after taking into consideration the facts and circumstances of this case there will be awarded £62 towards the costs of applicant No.1 against the respondents. Recourse of applicant No.I succeeds. Recourse of applicants 2. 3andΛ dismissal. Cases referred to: 10 Mutliotfr v. The Municipality of N'sia

(1965)3 C.L.R. 75 uc p. 94; Christodoididvs v. Republic

(1978)3 C.L.R. 189: Kyriakides r. Republic. I R.S.C.C. 66 at p. 74. Recourse. 15 Recourse against the decision of the respondents prohibiting the importation of certain books. K. Talarides, with Chr. Melides, for the applicants. A/. Photiou, for the respondents. Cur. adv. vult. 20 25 30 LORIS J. read the following judgment. All four applicants impugned by means of the present recourse the decisions of the respondents appended to it marked exhs. 1 and 2 respectively, the first one being the decision of the Director of Customs (included in his letter dated 29.1.83 addressed to counsel for applicant No. 1) and the second that of the Senior Customs Officer· of Limassol included in his letter of 1.2.83 likewise ad­ dressed. The decision - exh. 1 - prohibits the importation of certain books referred to therein, as obscene, whilst decision - exhibit 2 - emanating from the Senior Customs Officer of Limassol informs applicant No. 1that the importationof the books there- . in enumerated is prohibited by Law 53/76 and "thus they are seized". 607 Loris J. Kitlou and Others >. Republic

(1983)Applicants inthepresentrecoursepray for adeclarationtothe effect that both aforesaid decisions are null and devoid of any legal effect whatever. The legal grounds on which the present recourse is based are set out explicitly in paras. I - 6of the recouse and Ido not intend repeating them; suffice it to say that 5 they boil down to twobroad issues,notably that (

1. a)thealleged obscenity in a publication has to be decided by a competent Court and cannot be left to the discretion of the Director of Customs and (b)seizure of books can only beeffected -if at all - in apropercasebystrictly adheringtotheprocedureenvisaged 10 by the relevant law, notably Law 82/67 as amended, which was not followed in the present case. Respondents intheir opposition to the main recourse support their aforesaid decisions as rightly and lawfully reached at and maintain, inter alia, that applicant 2, 3and 4have no "existing 15 legitimate interest" in the sense of Article 146.2 of the Constitution. Applicantsfiled thepresentrecourseon5.3.83andatthesame time they filed an application seeking a provisional order suspending the effect of the said administrative decisions of both 20 respondents; therespondents filed an opposition to thisapplication as well,butfinally theapplication for aprovisional order was withdrawn on 29.3.83 in view of the fixing of the main recourse for hearing on 11.4.83. Today when the hearing of the main recourse commenced counsel appearing for respondents 25 stated before meinquite clear and unambiguous terms that the respondents recall both subjudice decisions and notice of such recall in writing will be giventoapplicant No. 1 within theday addingatthesametimethattherespondentsarereadytosubmit to an order of this Court as applied declaring null and devoid 30 of any legal effect the decisions in question although counsel madeit clear that therespondents insist inmaintaining -asthey originally did - that applicants 2, 3 and 4 have no existing legitimate interest in the present recourse in the sense of Article 146.2 of the Constitution and in consequence thereof the re- 35 spondents are not prepared to submit to an order in favour of applicants 2 - 4 similar to the one they have indicated their intention to submit infavour ofapplicant No. 1,as stated above. Leading counsel for applicants stated that the applicants do not intend to withdraw thepresent recoursedespite the recall of 40 608 3 C.L.R. Kittou and Others v. Republic Loris J. the subjudice decisions by the respondents in view of the fact that applicants have suffered damage-ashe alleged -due to the initial decisions of the respondents. He submitted that the Court should proceed todeclare both decisionsnull and void as 5 applied; he maintained further that all applicants have and had at all material times an existing legitimate interest in the senseof Article 146.2of the Constitution and in support of this submissionhecalled thefirst applicant whogaveevidence before me on this issue. 10 Finally, leading counsel for applicants claimed the costs of the present recourse amounting to £124.250 mils for one advocate. On the question of costs counsel for respondents submitted that the Court in exercising his discretion should not award costs against respondents in view of the fact that a re15 course by the same applicants on the same subject matter was withdrawn aspremature on the29.3.83and onthat occasion the respondents did not claim costs. 20 It is clear from the above that I have to decide three issues, i.e. (
2. a)Whether I should proceed in pronouncing the annulmentofthesubjudicedecisionsinviewof the fact that both decisions are recalled today by respondents. 25 (
3. b)If Iwere to annul the subjudice decisions should that annulment operate in favour of all applicants or in favour of applicants No. 1 only; in other words haveapplicants 2,3and4 "existing legitimate interest" envisaged by Article 146.2 of the Constitution? (
4. c)The last issue which falls for determination is the question of costs. 30 As regards the first issue two aspects have to be considered. The legal aspect and the factual aspect of the present case. Inconnectionwiththelegalaspectitisabundantly clear from the authorities that an administrativeactof"limited duration", whichbefore ceasingtobeeffective hasproduced results,canbe 35 annulled even though the legal situation created by it has subsequentlyceasedtoexist{Malliotisv.The MunicipalityofNicosia

(1965)3 C.L.R. 75at p. 94). In the case of Christodoulides v. 609 Loris J. Kittou and Others v. Republic

(1983)The Republic

(1978)3 C.L.R. 189the aforesaid case of Malliotis (supra) was followed and the learned President of this Court proceeded in declaring null and void the administrative decision in this case holding that the recourse could not be treated as abated owing to the fact that it had produced results before 5 ceasing to be effective. In the case of Christodoulidesv. The Republic

(1978)3 C.L.R. 193the learned President of this Court decided that the applicant was entitled to have his recourse determined in spite of the fact that the applicant in that case was eventually discharged from the National Guard whilst his recourse against the refusal to discharge him was still pending. In this latter case it was stressed that "one of the reasons for which the applicant was entitled to pursue his recourse up to the stage of final judgment notwithstandinghisdischargefrom theNational Guard inthemeantime, is that he could only seek compensation under Article 146.6 of the Constitution after he would obtain judgment in these proceedings." The above proposition was relied on the case of Kyriakides v. The Republic, 1 R.S.C.C. 66at p. 74which reads as follows: "Article 172 lays down the general principle that the Republic is made 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'. It isclearly aimed at remedying the situation exist- 25 ingbefore thecoming intoforce of the Constitution whereby the former Government of the Colony of Cyprus could not be sued in tort. The principle embodied in Article 172 has been given effect, inter alia, in the Constitution by means of paragraph 30 6 of Article 146in respect of all matters coming within the scope of such Article

1. Therefore, in the opinion of this Court, in respect of all wrongful acts or omissions referred to in Article 172 and which acts or omissions come within the scope of Article 35 146 an action for damages lies in a civil Court only under paragraph 6 of such Article, consequent upon a judgment of this Court under paragraph 4 of the same Article, and in such cases an action does not lie direct in a civil Court by virtue of the provisions of Article 172." 40 610 15 3 C.L.R. Kittou and Others v. Republic Lnris J. Reverting to the facts of this case in respect of this issue it is significant to note that it was not disputed by counsel for respondents that both decisions were defective and should be recalled, although an attempt was made to present the defect as 5 procedural; nevertheless it was never argued on their behalf that 1 should not proceed to declare the subjudice decisions null and void and of no legal effect whatever; On the contrary it was clearly-stated that in respect of applicant No. 1 they are ready to submit to an order to that effect, and 1 say rightly so, 10 because from the material placed before me I am satisfied that both decisions.were 'defective. Leading counsel appearing for applicants laid emphasis on the right of the applicants to obtain a judgment in these proceedings maintaining that damage was suffered as a result of the 15 sub judice decisions which remained in force for a period over two months (29.1.83 - 11.4.83) whilst counsel for respondents in declaring the intention of the-respondents to submit to an order annulling both decisions clearly stated that he disputes on behalf of the respondents that any damage whatever was caused to 20 applicant No. 1 or anyone of the applicants if they are ultimately found to have present legitimate interest in the present recourse. It isnot withinmy province todecide thenature and extent of the' alleged damage and I shall confine myself in saying that there is a probability that damage might have been caused to applicant 25 No. 1 as a result of the subjudice decisions for the period during which they remained in force. For the above reasons'applicant No. 1is entitled both in law and in fact to obtain a judgment in these proceedings. The second issue which has to be determined is the question 30 whether applicants 2, 3and 4have an existing legitimate interest in the present recourse as envisaged by Article 146.2 of the Constitution. On this issue I have the evidence of applicant No.1 given viva voce before me in Court as wellas the several exhibits and other documents which appear in the file of this recourse. 35 It is abundantly clear from all this material before me that applicant No. 1 had at all material times of the present recourse an existing legitimate interest in the sense of Article 146.
2. , She 611 Loris J. Kittou and Others v. Republic

(1983)wasandstillistheownerand/orthepersoninchargeofthebook shop in question for whoseaccount the books referred to inthe subjudice decisions were imported. All letters to the respondents were addressed by her or on her behalf exclusively and at the same time all letters of the respondents including the sub 5 judice decisionswere addressed by the respondents to applicant No.1 ortocounselactingonherbehalfonly. Itisobviousfrom theevidenceofapplicant No. 1 thatwhatever agreement shehad entered into with applicants 2, 3 and 4 in connection with the importing on their account some of the booksmentioned in the 10 subjudice decisions or the sale of such books to them after the importation of same, isa question ofprivate lawregulatingcontractual relations between applicant No. 1 on the onehand and applicants 2,3and 4ontheother and thusapplicants 2-4have no existing legitimate interest as persons in the sense of Article 15 146.2 of the Constitution. I say, as persons, because it was submitted on their behalf they have an existing legitimate interest asclass ofpersons,i.e. booksellers or inthe alternativeas members of the community who have been adversely and directly affected by the subjudice decisions as they are interested 20 about the outcome of a case which concerns a serious constitutional issue, notably an issuetouchingcensor of literature. I do not intend to explain the meaning of "a memberof a community" referred to in Article 146.2 of theConstitution as it is abundantly clear what thatmeans and it isquite inapplicable in 25 the case in hand. On the other hand the submission that applicants 2 - 4 belong to a classofpersonsi.e.booksellers and as suchtheyhaveanexistinglegitimateinterestenvisagedbyArticle 146.2 of the Constitution is absolutely untenable. For the above reasons applicants 2, 3 and 4 unlike applicant 30 1 have no existing legitimate interest and therefore their application is doomed to failure. Astothequestion ofcostshavingconsidered thematter inthe light of submissions advanced by both sides and having taken intoconsideration thefacts andcircumstancesofthiscaseIhave 35 decided toaward only£62.-towardsthecostsofapplicant No.1 against respondents. In the result the subjudice decisions are hereby declared null 612 3 C.L.R. Kittou and Others v. Republic Loris J. and void and of noeffect whatever in the application of applicant No. I. The application of applicants 2, 3 and 4 is hereby dismissed. Respondents to pay £62.- towards the costs ofapplicant No.I. 5 Subjudice decisionin respect of applicant1 annulled. Recourseby applicants2, 3 and 4 dismissed. 613