(19M) 1984 August 7 [TRIANTAFYLLIDES, P.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THEOFANO THOMA HADJIPAPASYMEOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE DISTRICT OFFICER OF NICOSIA, Respondent. (Case No. 220/83). Practice—Title of proceedings—Parties to a recourse—Recourse for annulment—Made against the act, decisionor omission which is its subject-matter—Organ responsibletherefor made a party to the recourse only in the sense that it is given an opportunity to be heard in relation to its outcome—Recourseagainst District 5 Officer concerning a term in a buildingpermit issuedby Improvement Board—Decision complainedof not taken by District Officer but by Improvement Board—Title of proceedings amended by nwking the Improvement Board, also, a respondent. By means of this recourse, the applicant complained against a term which was included in a building permit issued by the Improvement Board of Paliometocho on the 17th March, 1983. The said permit was signed by the District Officer of Nicosia on behalf of the Improvement Board of Paliometocho. 10 In the title of the application in this recourse the respondent 15 was described as "The Republic of Cyprus through the District Officer of Nicosia". As there was raised in the Opposition the objection that the Dinrift Officer of Nicosia had never taken the decision which was challenged by this recourse counsel for the applicant applied for lea>c to amend the title of this case so as to add as a second respondent the "Improvement Board of Paliometocho". 1112 20 3 C.L.R. 5 10 15 20 25 30 35 HadjiPapasymeou v. Republic Held,that an administrative recourse, such as the present one,whichisfiledunderArticle 146 oftheConstitution,ismade against theact,decision or omission which isits subject-matter and the organ responsible for that act,decision or omission is a party to the recourse only in the sense that it is given an opportunity to be heard in relation to its outcome; that the amendment of the title of the proceedings in the present case isbeingsought inorder tobringit into full conformity withthe true position regarding the subject-matter of the recourse, namely the complained of part of the building permit which was issued by the Improvement Board of Paliometocho on the 17thMarch 1983,andagainst which this recourse was filed in time, under Article 146.3 of the Constitution, on the 27th May 1983;that, consequently, the amendment of the title of thepresent proceedingswillbeallowed bymakingtheImprovement Board of Paliometocho a respondent in this case. Observation: It is, of course, to be understood that the District Officer of Nicosia is to betreated asa party to these proceedings not inhiscapacity asa separate organof administration, but as being the Chairman of the aforementioned Improvement Board Order accordingly. Cases referred to: Cyprus Transport Co. Ltd.(No. 1)v. Republic
(1969)3 C.L.R. 501at p. 502; Lambrou v. Republic
(1970)3 C.L.R. 75 at p.79; Christodoulou v. Republic, 1R.S.C.C. 1at p. 9; Hadjianastassiou v. Republic
(1982)3 C.L.R. 672 at p.674; LanitisFarm Ltd. v. Republic
(1982)3 C.L.R. 124at p.132: Improvement BoardofStrovolos v. Republic
(1983)3C.L.R.
- Recourse. Recourse against the decision of the respondent whereby a term wasincludedinthebuildingpermit issuedtotheapplicant on the 17th March,
- E. Markidou (Mrs.), for the applicant. A. Vladimirou, for the respondent. Cur. adv.vult. TRIANTAFYLLIDES P. readthe following decision. By means of the present recourse, which wasfiled onthe27th May 1983, 1183 Triantafyllides J. HadjiPapasymeou \* Republic
(1984)the applicant complains against a term which was included in a building permit issued by the Improvement Board of Paliometocho on the 17th March 1983. The said permit is signed by the District Officer of Nicosia on behalf of the Improvement Board of Paliometocho. 5 In thetitle of IheApplication inthis recoursethe respondent is described as "The Republic of Cyprus through the District Officer of Nicosia". As there was raised in the Opposition the objection that the District Officer of Nicosia had never taken the decision which 10 is challenged by this recourse counsel for the applicant applied for leaveto amendthetitleof thiscasesoasto add asasecond respondent the "Improvement Board of Paliometocho". An administrative recourse, such as the present one, which isfiledunder Article 146 of the Constitution, is made against 15 the act, decision or omission which is its subject-matter and· the organ responsible for that act, decision or omission is a partytotherecourseonlyinthesensethatitisgivenanopportunity to be heard in relation' to its outcome. This is plainly obvious not only from the provisions as a whole of Article 146 20 oftheConstitutionbut,also,duetothenatureofthejurisdiction created byit and the general principles ofpublic lawwhich are applicable to the exerciseof suchjurisdiction; and, useful reference,inthisrespect, maybemadetothecasesof Cyprus TransportCo.Ltd. (No. 1)v. The Republic,
(1969)3C.L.R. 501,502 25 and Lambrou v. TheRepublic,
(1970)3C.L.R. 75, 79. It is pertinent to note that in the case of Christodoulou v. The Republic, 1R.S.C.C. 1,9,the Court proceeded, on itsown motion,whengivingjudgment,toamendthetitleoftheproceedings so as to bringit intoconformity with thetrue facts of the 30 case. I have perused the Court record of the Christodoulou case, supra, and it apperas that, initially, that recourse was filed against "Polycarpos Yorkadjis, Minister of Interior" as the respondent; but the Court amended the description of the respondent so as to become "The Republic of Cyprus, 35 through the.Collector of Customs, Nicosia" and the fact that this course was,rightlyin my opinion, adopted by the Court onits ownmotion, whengivingjudgment, eloquently illustrates 1184 3 C.L.R. HmJjiPapasymeou v. Republic Triantafyllides J. that what really matters in a recourse under Article 146 is its subject-matter and that the description of the respondent is a subsidiary formality. I have been referred by counsel for the respondent to the case of Hadjianastassiou v. The Republic,
(1982)3 C.L.R. 672, 674, where it did not appear that the administrative action which had been challenged by that recourse had emanated from the Improvement Board of Ayios Athanassios which was the competent organ, but only from the District Officer of Limassol 10 who did not seem to have acted as the Chairman of the said Board. In the present case, however, it is quite clear that the District Officer of Nicosia acted on behalf of the Improvement Board concerned and, therefore, this case is clearly distinguishable from the Hadjianastassiou case, supra. 5 15 It may be usefully observed, too, that in the case of Lanitis Farm Ltd. v. The Republic,
(1982)3 C.L.R. 124, 132, it was held by A. Loizou J. that the addition of the Agricultural Insurance Organization as a party to the proceedings at the late stage of delivering hisjudgment would contravene the provisions 20 of Article 146.3 as regards the time within which an administrative recourse may be filed. But in the Lanitis Farm Ltd. case, supra, there had not been challenged by the recourse, when it was filed, any act or decision of the said Organization and, therefore, its belated addition as a respondent coupled 25 with an amendment of the motion for relief so as to enable the applicant to challenge action taken by such Organization would, indeed, have resulted in a contravention of the provisions of Article 146.3. Consequently, that case is, also, distinguishablefrom thepresent oneand, indeed,it clearlyindicates 30 thesignificance of the subject-matter of a recourse under Article 146 of the Constitution. 35 I have been referred by counsel for the respondent to the case of The Improvement Board of Strovolos v. The Republic,
(1983)3 C.L.R. 434, where Pikis J. examined the nature of an Improvement Board when considering the possibility of a recourse being filed against the Republic by an Improvement Board as an organ of local administration. I do not think that the views which were expressed by Pikis J. on the said occasion on an issue with which I am not now dealing should 1185 Triantafyllides P. HadjPapasymeoa v. Republic
(1984)lead me to the conclusion that the amendment applied for in the present proceedings should not be allowed. In my opinion the amendment of the title of the proceedings in thepresent caseis beingsought in order to bringit into full conformity with the true position regarding the subject-matter of the recourse, namely the complained of part of the building permit which was issued by the Improvement Board of Paliometochoonthe17thMarch 1983,andagainst whichthisrecoui&e was filed in time, under Article 146.3 of the Constitution, on the 27th May 1983. 5 10 I have, consequently, decided to allow the amendment of the title of the present proceedings by making the Improvement Board of Paliometocho a respondent in this case. Before concluding 1should observe that in the light of all theforegoing it is,ofcourse,to beunderstood that the District 15 Officer ofNicosiaistobetreated asapartytotheseproceedings not in his capacity as a separate organ of administration, but as being the Chairman of the aforementioned Improvement Board. Order accordingly. 20 1186