clr/1984/1984_2_377.pdf

(1984)found that the said advertisement wasa "point of saleadvertisement" within the meaning of section 6 of the above Law; and that no contravention would exist if such advertisement was placed in such a proper position outside the shop as to satisfy the prerequisite of section 6(l)(iii) of the Law. 5 Held, that findings of fact are within the domain of the trial Judge and this Court will only interfere if such findings are unwarranted by the evidence before the trial Court or the inferences drawn from such facts are manifestly wrong; that on the evidence before the trial Judge the doubts expressed by him 10 werereasonable andthat itwasreasonably open to himto reach the conclusion which he reached on the facts of the case; and that, therefore, this Court has not been convinced that the findings of the trial Judge were wrong; that, further, in the absenceofany evidencethat suchadvertisement didnot fall within 15 theprovisotosection 6

(1)of Cap. 50,thetrial Judgewasentitled to reach the conclusion that he reached in this case; and that, accordingly, the appeal must be dismissed. Appeal dismissed. Appeal against acquittal. 20 ; Appea' by the Municipality of Nicosia aga nst the judgment of the Dislrict Couit of Nicosia iKiamvis, Ag. D. J.) given on the 17th Scptcmbet, 1983 (Criminal Case No. 9069/82) whereby the tcspondenls weie acquitted of the offences of displaying oi earning to be cisplayed advertisersnts conttary to sections 25 4{b), 5and 14 of the Display cf Advertisements Law, Cap. 50 (as amended by Law 4/74). N. Panayiotou, for the appellant. X. Syllouris, foi the tespondents. Cur. jdv. vult. 30 A. Loizou J.: The judgment of the Court will be deliveied by Mi. Ju*.ice Savvides. SAWIDESJ.: The appellant isthe Muricipality of Nicosia and filed ths present appeal with the sanction of the AttorneyGeneral of the Republic under scctior l37(lXa)(iXiii) of the 35 Criminal Proceduie Law, Cap. 155 against the decision of the District Couit of Nicosia inCriminal CaseNo. 9069/82,wheieby the accused were acquitted. 378 2 C.L.K. Municipality of Nicosia v. Tiipian Sa\%ides J . Accused.2 is a limited company· and accused 1 is a shareholder, Director, and. Secretary of accused 1. Both accused faced a charge.before the District-Couit of. Nicosia, containing two counts, the fiist one chaiging them that.ona date unknown 5 to the piosccutibn,.between the yeais-1981 and 1982J unlawfully displayed, two adveitiscments on the premises at Ledra Street 195 within the:Municipal limits of Nicosia, without a licence fiom the Municipality of Nicosia, and the second that at the same time and place they did cause to be displayed an adveitise10 ment without' a pcimit from the Municipality of Nicosia. Both counts were based on sections 4{b). 5 and 14 of the Display of Advtitisements (Control) Law, Cap. 50, as amended by Law 4/74.. Section 4 teads>as-follows: 15 "No person, shall— (a)· — 20 (b) display, or.cause to be displayed and'advertisements to which this Law applies except (i) upon a hoarding lawfully erected in"accordance- with the provisions of section 5 or (ii) in accordance wilh the. provisions of section 6". Section-5 ptovides foi the. election,, eithei by the Council of a Municipal.Coipoiation oi by any other, pcison under the authority of theCounciKof Hoardings on which advcitifcements may be.displayed, under such conditions as may be imposed 25 bythe Council andsection 6provides for adveitiscments relating to business etc. and-reads as follows: 30 35 "6.

(1)It shall:be lawful for any person, within the area of amunicipal corporation with theappiovai of the Council, or elscwlieic with the approval of the District Officer, or, within an' Improvement Area,of the Improvement Board, but not otherwise, to display upon his own land or upon any land'in his occupation or use, or wheie he is working, whether upon a·- hoarding or otherwise, adveitiscments (hereinafter- in this section refeired to as 'point of sale advertisements') dii;ctly relating to'any business, profession, trade or woik carried on upon such land: 379 Sawides J. Municipality of Nicosia v. Tiipian

(1984)Provided that— (

1. a)any point of sale advertisement so displayed shall not be suspended across a street; (
2. b)any point of sale advertisement so displayed shall not be suspended or projected outwards into a street if the height of the lower portion of such advertisement is less than twelve feet above the level of the stieet; 5 (
3. c)any point of sale advertisement so displayed, the lower portion of which is not loss than twelve foot above the 10 level of the street, shall not be suspended or projected outwaids into the street a distance of moi5 than two feet.

(2)Subject to the provisions of section 9, the Council, the District Officer or the Improvement Boaid, as the case 15 may be, may approve oi refuse to appiovc the display of any point of sale advertisement under this section, and in approving the display of any such advertisement the Council, the District Officer or the Improvement Board, as thecasemay be,shall, withoutprejudice toany othei poweis 20 confcncd under this Law or any bye-laws or regulations made thereunder, have power to impose conditions relating to the display and proper maintenance of such point of sale advertisement.

(3)Notwithstanding anything contained in subsections 25

(1)and

(2)of this section, no approval of the Counul or of the District Officer or of the Improvement Board shall be requited in lespect of the display of any pcint of sale advcrti»cment which fulfils the requirements of paragraphs (a), (b) and (c) of the proviso to subsection

(1)of this 30 section if— (

1. a)it isso displayed asto bedirectly attached to, or affixed on, any buildings belonging to, or in the occupation or use of, the person displaying the advertisement, or where he is working, and in which he carries on 35 the business, piofcss.ion, trade, or work to which the advertisement diiectly relates; and (
2. b)it does net, by itself or along with one 01 mote other point of sale advertisements, occupy an area more 380 2 C.L.R. 5 Municipality of Nicosia v. Tiipian Sawides J. than one-fifth of the oveiall area of the face of the building to which it isattached or on which it is affixed taken up to a height of fifteen feel from ground level, the area so occupied being computed as if the said advertisement or advertisements, howsoever attached or affixed, was or were displayed flat against the face of the building; and (
3. c)ir is not moit :han fifteei feet above ground level". Section 9 reference to which is made in section 6, provides 10 for the control of advertisements to be exercised in the interests of amenity and public safety. Section 14provides for the sentence to be imposed in contravention of the law and has been amended by section 3 of Law 4/74 to the effect that the sentence provided in lespect thereof 15 has been increased. It should benoted that by section 89of Law 90/72 (The Town (and Country Planning Law), the provisions of the Display of Adveitiscments (Contiol) Law, Cap 50 will be deemed as repealed as from the date when any Regulations made under 20 section 40 of the Law (which provides foi the control of advertisements), come into operation unless provision to the contrary is made by the Regulations. Though certain provisions of Law 90/72 came into operation, no Regulations have been put into operation under the provisions of section 4 and, therefore, the 25 prov;sions of Cap, 50 continue in foicc. The trial Judge having heard the evidence called by the prosecution and on the submission of counsel for the appellants found that there was no prima facie case for calling the accused for their defence on count 1, and, as a result, acquitted and 30 discharged them on such count. On the other hand, he found that there was prima facie case against both accused on count 2 and called upon them to make their defence After the conclusion of the hearing, the Court, on the evidence before it, found both accused not guilty on count 2 and acquitted and 35 discharged them accordingly. The present appeal was originally diiected against both the acquittal of accused on count 1 on the finding of the Court 381 Sawides J. Municipality of Nicosia v. Tiipian (1984 that there was no prima facie case against them and'their acquittal on count 2. In the course of the hearing of this appeal; however, counsel for appellant withdrew his first ground of appeal against the acquittal of respondents on count 1 and pursued his second ground of appeal which was directed against the acquittal of the accused on count 2 Such ground was as follows: 5 "The trial Court wrongly, found and/or wrongly came to theconclusion.that the advertisement in question was 'point of sale advertisement' ". The facts of the: case are briefly as follow: On three different occasions during the pciiod sit out in the charge, P. W. 1Andreas Papaioannou, a cleik in the employment of the Municipality of Nicosia, in charge of the Advertisements section, visited Ledra Street and outside the shop at 15 No 195,which isa photogiaphic shop known as "Photo Ledra", noticed that on the front part of the shop there was exposed an advertisement on which the name of the shop was mentioned and at the corner there was a box in the shape of a film box on which the wordt "We sell Kodak films-camcias" waspainted, 20 in addition to the name of the photogiaphic shop. Such pait of Ihe advertisement on which the box and the words appeared was painted in yellow and red. Similar advertisements wore exposed also in a number of other shops in Ledra and Apollo Street. According to the evidence accepted by the trial Judge, 25 such sign was painted by P.W. 5, Christoforot Londos who re a sign writer employed to paint advertisement signs for icspondent 1, including that which was exposed outside the shop at 195 Ledra street which was painted by him on instructions received from respondent 1and according to a design given to 30 him by respondent 1concerning the box and the letters appearing thereon, as well as the colours used. According to this witness he made similar signs foi other photogiaphic shops ir Ledia and Apollo street which h* described in his evrdene?. For the making ard placirg of this sign hewas paid by respond- 35 ent 1. The witness further addud that as fai as the name of the shop and the colours to be used foi that purpo;e he received instructions fiom the owacr of the shop. The following two issues pose for consideration in this appeal: 382 10 2 C.L\R. Municipality of Nicosia v. Tiipian Sawides J. The first issue is whether such sign was a point of sale advertisement falling within section 6

(1)of the Law for which, under the proviso thereto, no permit was required from the appropriate authority, for exposing it. The second issue is whether such 5 sign was placed there by the owner of the shop or by cither accused. v The learned trial Judge in hisjudgment found the following: 10 15 20 25 30 35 "On the basis of the admitted real facts which concern the present case, 1 shall proceed to examine whether the accused or either of them caused to be exposed the said advertisement. If from such examination it emanates that the accused or either of them caused the said advertisement to beexposed, what remains to beexamined is whether the provisions of section 5 or section 6 of the Law and in particular the piovisions of section 6

(3)of the said Law can be applied in this case. Without any doubt, I find that the provisions of section 5 of the Law have no application and, therefore, 1 have to consider whether the provisions of section 6 have any application in this case". For the purpose of determining such issue, the learned trial Judge after considering theevidence before him and in particular the evidence of P.W.5, said: "On this point it should be said that I do not have before me any clear evidence on the point whether witness No. 5, Londos, when placing this sign he followed exactly any instructions of the accused or either of them, concerning the placing and the final position of the advertisement . or whether he proceeded to such placing selecting himself its final positron or whether the final position was selected by D.W.I Theocharides or P.W.5, Londos, or by both of them. P.W.5 Londos did not give any clear and concrete evidence in connection with this matter and in the absence of any persuasive and clear evidence, I have my doubts. I have also my doubts on the question of the fixing of the size of the,advertisement. The evidence which is before .me in this respect is not positive though it may be presumed but not with all certainty, that the size of the sign was arranged by witness 5". Then the trial Judge after he had dealt with all the facts 383 Sawides J. Municipality of Nicosia v. Tiipian

(1984)of the case, as emanating from the evidence accepted by him and after he had expounded on the interpretation of the relevant provisions of the Law and their application to the facts of the case, as found byhim, came to the conclusion that the advertisement in question was "point of sale advertisement" within the meaning of the Law and concluded as follows: 5 "I have already found that the advertisement which is the subject matter of the present charge is a point of sale advertisement in the meaning of the law. As already mentioned, the position and size of the said advertisement to- 10 gether with all other prerequisites arematerial in connection with the issue as to whether the approval of the appropriate authority for the display or causing to be displayed of an advertisement is required. In short, no contravention would exisl if this point of sale advertisement was placed ]5 in such a proper position outside the photographer's shop as to satisfy the prerequisites of section 6(l)(iii) of the Law. In fact, it is probable that the prerequisites of section 6

(3)of the Law aie satisfied and as a result no contravention has taken place in the present case, but there isno evidence 20 before me about this. As there is nothing before me proving beyond any reasonable doubt that P.W.5 Londos acted in strict compliance and according to the instructions of the accused or either of them in the carrying out of the work of the placing of the advertisement or the selection 25 of its size, I believe that the accused cannot be found guilty on the charge against them". From what appears from the extracts of the judgment of the trial Judge to which reference has already been made, the whole issue turned on the question of fact as to whether this advertise- 30 ment was placed by P.W.5 on the instructions of either accused or on the instructions of the owner of the shop. As it has been repeatedly stressed by this Court, findings of fact are within the domain of the trial Judge and this Court will only interfere if such findings are unwarranted by the evi- 35 dence before the trial Court or the inferences drawn from such facts are manifestly wrong. Having considered the evidence before the trial Court, we find that the doubts expressed by him were reasonable and that 384 2 C.L.R. Municipality of Nicosia τ. Tiipian Sarvldes J. it was reasonably open to him to teach the conclusion which he reached on the facts of the case. We have not theiefore been convinced that thefindingsof thetrial Judge were wrong. In theabsence of any evidence that such advertisement did not 5 fall within the proviso of section 6

(1),he was entitled to reach the conclusion that he reached in this case. In the result, this appeal fails and is hereby dismissed. Appeal dismissed. 385