(1984)1984 March 31 [TRIANTAFYIXIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION AYIOS ANDRONIKOS DEVELOPMENT CO. LTD., Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH
- THE MINISTER OF INTERIOR,
- THE DIRECTOR OF LANDS AND SURVEYS,
- THE MINISTER OF FINANCE, Respondents. (Case No. 28/81). Immovable property—Transfer—Double transfer process—Sale of an area of land, under contract of sale—Which was divided into building plots by purchaser and sold to various persons—Respondent Director of Lands and Surveys could not lawfully accept a transfer directly by the original owner to the purchasers of 5 any of the building plots—Section I8(l)(c) of the immovable Property (Transfer and Mortgage) Law, 1965 (Law 9/65). Administrative practice—Not consonant with the proper application of the law—Does not create a legal situation enablingapplicants to succeed in their recourse. 10 Costs—Unsuccessful applicant—No order of costs against him because his complaint not devoid of moral merit even though not well-founded in law. The applicants a land development company, by a contract of sale, dated 4th September 1975, bought from Kykko Mona- 15 stery a large area of land for the purpose of dividing it into building plots and selling them eventually to other persons. The Lands Office refused to accept direct transfers by Kykko Monastery to purchasers of the plots and, consequently, the applicants had to comply with the double transfer process 1176 20 3 CL.R. Ayios Andro.iikos Co. r. Republic (from Kykko Monastery to the applicants and from the applicants to the purchasers) winch was insisted upon by the Lands Office. The applicants did so, and paid the relevant transfer fees, under protest, and then this recourse was filed. 5 Held,that section 18{1)(c)* of the Immovable Property (Transfer and Mortgage) Law, 1965 (Law 9/65) could not be duly and truly complied with if the building plots concerned were transferred directly by Kykko Monastery to the purchasers to whom the said plots had been sold not by The Monastery but by the applicants; that, consequently, no declarations of transfer by Kykko Monastery to the said purchasers could be made, especially as the Monastery had never actually agieed on any particulai dates to transfei tc their purchasers the buildingplots in question either gratis or for a specified consideration; and, therefore, the Lands Office could not lawfully accept a transfer to be made directly by the Monastery to a purchaser of any one of the building plots; accordingly the recourse should fail. 10 15 Held, further,
(1)that though in accordance with an administrative practice, which was revoked in 1981 the direct transfer was possible, as such administrative practice was not consonant withtheproper application of section 18(l)(c) of Law9/65it cannot betreated ascreating a legal situation enablingthe applicants to succeed in their present recourse. 20 25 30
(2)That no order for costs will be made against the applicants because, though their complaint was not well-founded in law, it is not devoid of moral merit. Application dismissed. Cases referred to: P-M. Tseriotis Ltd. v. Republic
(1970)3 CL.R. 135 at p. 143; Makrides v. Republic
(1979)3 CL.R. 584 at p. 601. • Section 18(lXc) provides as follows: "18
(1)The written declarations required to be produced at the District Lands Office by the transferor and transferee of any immovable property shall contain the particulars following, that is to say— (c) inthecaseofthetransferor, astatement that heistheperson appearing as the owner of such immovable'property and that on a date to be stated he agreed to transfer such immovable property to the person named as transferee either gratis or for a specified consideration:". 1177 Ayios Androoikoe Co. v. Republic
(1984)Recourse. Recourse against tho decision of the respondents not to accept the transfer of a number of building plots directly from Kykko Monastery to their purchasers, to whom they were sold by the applicants, acd to insist that they should be trans- 5 fened first by Kykko Monastery to applicants and then by the applicants to the said purchasers. A. Triantafyllides with M. Cleopasand G. Triantafyllides, for the applicants. M. Kyprianou, Senior Counsel of the Republic, for the 10 respondents. Cur. adv. vult. TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicants complain, ineffect, against the decision of the Director of Lands and Surveys not to accept 15 the transfer of a number of building plots directly from Kykko Monastery to their purchasers, to whom they were sold by the applicants, and to insist that they should be transferred first by Kykko Monastery to the applicants and then by the applicants to the said purchasers. 20 The applicants are a land development company which by a contract of sale, dated 4th September 1975, has bought from Kykko Monasterya largearea oflandfor thepurpose ofdividing itintobuilding plotsandsellingthemeventuallytoother persons. The said contract of sate was deposited by the applicants at 25 the Nicosia District Lands Office in accordance with the provisions of the Sale of Land (Specific Performance) Law, Cap. 232, as amended by the SaleofLand (Specific Performance) (Amendment) Law, 1970 (Law 50/70) and the Sale of Land (Specific Performance) (Amendment) Law, 1972 (Law 96/72). 30 As already stated the Lands Office refused to accept direct transfers by Kykko Monastery to purchasers of the plots and, consequently, the applicants had to comply with the complained of double transfer process(from Kykko Monastery to the applicants and from the applicants to the purchasers) which was 35 insisted upon by the Lands Office. The applicants did so, and paid the relevant transfer fees, under protest, and then this recourse was filed. 1178 3 C.L.R. Ayios Andronikos Co. r. Republic Triantafyllides P. Inadoptingitsaforementioned standinthemattertheDepartment of Lands and Surveys gave substantially the following reasons,whichappearinadocumentdated 14thNovember1980: 5 10 (a) That the initial contract between Kykko Monastery andtheapplicantsdid notrefer tothesameimmovable property which is referred to in the contract between the applicants and the purchaser-transferee. (b) That theamount paid asconsideration is not identical in that the amount which was received by Kykko Monastery was not the same as that which was paid by the purchaser-transferee to the applicants. (c) Thatitcouldnotbestatedinthedeclarationoftransfer that the purchase price was paid as consideration by the purchaser-transferee to Kykko Monastery. 15 As it was pointed out in the aforesaid document dated 14th November 1980, for a particular building plot the applicants had paid to Kykko Monastery a price of C£l,440 whereas it has been sold bythem to its purchaser at the price ofC£4,650. Arelevant legislative provision issection 18
(1)ofthe Immov20 able Property (Transfer and Mortgage) Law, 1965(Law 9/65), which reads as follows: 25 "18.-
(1)The written declarations required to be produced attheDistrict LandsOffice bythetransferor and transferee of any immovable property shall contain the particulars following, that is to say— (
- a)a description of the immovable property proposed to be transferred by reference to its situation, the number and date of registration, the assessed value and the share or interest desired to be transferred; 30 35 (
- b)a statement on whether or not there is any change in the condition of the immovable property proposed to betransferred asdescribedintheregistrationtherefor and on the nature of any suchchange and astatement onwhether ornot thereisanysubsistingtenancy of such immovable property; (
- c)in the case of the transferor, a statement that he is 1179 Triantafyllides P. Ayios Andronikos Co. v. Republic
(1984)the person appearing as the owner of such immovable property and that on a date to be stated he agreed to transfer such immovable property to the person named as transferee either gratis or for a specified consideration: 5 Providedthat wheretwoormoreimmovableproperties are included in one declaration of transfer on payment of a consideration, the consideration for each of such immovable properties shall be separately stated; 10 (
- d)in the case of the transferee, a statement that he has agreed to accept the transfer of such immovable propertyonthetermsstatedinthestatement of thetransferor; (
- e)a statement that there is no agreement for the re- 15 transfer to the transferor of such immovable property on any payment or on the occurrence of any event; (
- f)a statement confirming that the parries know each other and giving particulars of any relationship existing between them; and (
- g)a statement that the parties desire that the immovable property be registered in the name of the transferee". Particular attention is drawn to the provisions of paragraph (
- c)of subsection
(1)of section 18, above, which for obvious -reasonscouldnotbedulyand trulycomplied withifthebuilding 25 plots concerned were transferred directly by Kykko Monastery to thepurchasers to whomthe said plots had been sold not by the Monastery but by theapplicants. Consequently, no declarations of transfer by Kykko Monastery to the aforementioned purchasers could be made, especially as the Monastery had 30 never actually agreed on any particular dates to transfer to their purchasers the building plots in question either gratis or for a specified consideration; and, therefore, the Lands Office could not lawfully accept a transfer to be made directly bythe Monastery to a purchaser of any one of the buildmg plots. 35 Counsel for the applicants referred to an administrative practicewhichwasbeingfollowed bytheDepartmentofLandsand 1180 20 3 CLJL Ayios AndronUtos Co. v. Republic Triantafyllides P. Surveys at the material time, on the basis of a circular dated 27th December 1979 which was addressed by the said Department to all District Lands Offices. It might, indeed, be argued that in accordance with such practice, which was in force at 5 the material time, the direct transfers by Kykko Monastery to the purchasers to whom the applicants had sold building plots could have been accepted by the Lands Office; and such practice remained inforce until it wasrevoked on 17th February 1981. In any event, however, as the said administrative practice 10 wasnotconsonant with theproper application of section 18
(1)(c) of Law 9/65 it cannot be treated as creating a legal situation enabling the applicants to succeed in their present recourse (see,interalia,inthisrespect,P.M. TseriotisLtd. v. TheRepublic,
(1970)3 C.L.R. 135, 143and Makrides v. The Republic,
(1979)15 3 CL.R.'584, 601). For all the foregoing reasons this recourse fails. But in spite of my decision that this recourse should be dismissed 1am not prepared to make an order of costs against the applicants because,though Ihavenot found theapplicants' complaint 20 to be well-founded in law, 1do think that it is not devoid of moral merit. Recourse dismissedwith no order as to costs. \,m