clr/1984/1984_3_241.pdf

(1984)overall settlement of the relevant recourses by means of which the respondents were expected to withdraw them having been apparently duly compensated On thequestion whether anappeal could be withdrawn or abandoned without theleave of theCourt oronlywith such leave 5 as amatterof discretionpossessedbyit undertherelevant Rules ofCourt andonthequestionwhetherarecoursefiledunderArticle 146 of the Constitution couldbe withdrawn, discontinued or abandoned as ofright byalitigant orwhether that couldbe done only with the leaveof the Court: 10 Held,Pikis, J. dissenting, that given that there must exist interest as a prerequisite to theadmissibility of anapplication for annulment,it hastobeaccepted that as from the moment the applicant whoseeks theannulmentdeclares that hehas no interest for hisapplication tobetried, there does notexist any 15 longer this formal prerequisite, inasmuch as he who is not deprived of his ability to appear in Court is themost suitable dejuris e dejure judge of his owninterest; that onaccountof this theabandonmentof the already exercised judicial measure of application for annulmentis acceptable; that further accept- 20 ance of an administrative actdeprives acceptor ofthe legitimate interest to pursue a recourse; that the respondents by their statement have tobeconsidered ashaving been deprived ofany legitimate interest in the matter once they have acceptedun­ reservedly compensationbywayofdamages they have sustained 25 from thesubjudice decision; accordingly therespondents are entitled to withdraw their recourses and the appellants and cross-appellants to withdraw their appeals and cross-appeals. Order accordingly. Cases referred to: 30 Papasavvas v. Republic

(1967)3 C.L.R. 111; Christofisv. Republic

(1970)3 C.L.R. 97; Tomboli v. CY.T.A.

(1980)3 CL.R. 266andonappeal

(1982)3 CL.R. 149; Myrianthis v. Republic

(1977)3 CL.R. 165; Loucav. President of the Republic

(1982)3 CL.R.905; 242 35 3 C.L.R. Republic v. Louca and Others Republic v. Georghiades

(1972)3 CL.R. 594 at p. 690; Kazamias v. Republic

(1982)3 CL.R. 239 at p. 301; Louca v. President of the Republic

(1983)3 CL.R. 783 at pp. 791, 792; 5 Christou v. Republic

(1982)3 CL.R. 634 at p. 639; Branco Salvage Ltd. v. Republic

(1967)3 CL.R. 213; Attorney-General of the Republic v. Ibrahim, 1964 CL.R. 195; 10 Republic v. Vassiliades

(1967)3 CL.R. 82; Holy See of Kitium v. Municipal Councilof Limassol, I R.S.C.C 15 at p. 21; Kyriakides v. Republic, 1 R.S.CC 66 at p. 69; Pikis v. Republic

(1968)3 CL.R. 303 at pp. 305-306; Papadopoulos v. Republic

(1970)3 CL.R. 169 at p. 173; Republic v. Pericleous

(1972)3 CL.R. 63 at p. 68; 15 Constantinides v. Republic

(1969)3 CL.R. 523 at p. 530; Nissis (No. 2) v. Republic

(1967)3 CL.R. 671; Cyprian Seaway Agencies Ltd. and Others v. Republic

(1981)3 CL.R. 271; Hadjianastassiou v. Republic

(1983)3 CL.R. 1173; 20 Hess v. Labouchers, 14 T.L.R. 350; Fox v. Star Newspaper Co. [1899] 69 L.J. Q.B. 117; Tsirou v. Shitta

(1974)6 J.S.C 753; Heatley v. Barnard (Weekly Notes 1890, p. 130); Lees v. Motor Insurers' Bureau [1953] I W.L.R. 620; 25 Lindsay Parkinson Ltd. v. Tripton Ltd. [1973] 2 All E.R. 273 at p. 285; Castanhov. Brown &Roots (U.K.) Ltd. [1981] I All E.R. 143; Aloupas v. National Bank of Greece

(1983)I CL.R. 55. 243 Republic τ. Louca and Others

(1984)Appeals and cross-appeals. Appeals and cross-appeals against thejudgment of the Presi­ dent of the Supreme Court of Cyprus (Triantafyllides, P.) given on the 21st May, 1983 (Revisional Jurisdiction Case No. 32/82)* wheieby it was decided that the terminationof theservi- 5 ces of therespondent as amember of the Public Service Commis­ sion could not be treated as being an act of Government. CI. Antoniades, Senior Counsel of the Republic, for appellants in Appeal Nos. 325,

1. X. Xenopoullos, for appellants-interested parties in Appeals 323,
2. E. Efstathiou with P. Demetriades, for respondents in Appeals 323 and 326 and for cross-appellant in appeal
3. T. Papadopoullos, for respondents in Appeals 324 and
4. 10 15 Cur. adv. vw/r. The following judgments were read: HADJIANASTASSIOU J.: Counsel for the appellants and the respondents (applicants in the recourses) informed the Court of their wish to abandon both the appeal and the cross-appeal and 20 sought our leave for the purpose. Indeed, both respondents stated categorically in Court that their own wish was to with­ draw and abandon the two recourses because they have been offered compensation by the Government for the damage they have sustained on account of the sub judice act. The question 25 that arises is whether this Court is vested with power to allow them to withdraw therecourses, the appeal and the cross-appeal. In Greece, according to Professor Tsatsos, the position is stated as follows at p. 368 of his textbook "Recourse for Annul­ ment" 3rd edn: "
5. To δικαίωμα της παραιτήσεως άπότης υποβληθείσης αΙτήσεως ακυρώσεως δέν Ιγμ θεσπισθη διά τοϋ νόμου. Δο­ θέντος όμως, ότι απαιτείται ή παρουσία συμφέροντοςώς προϋπόθεσις της παραδοχής της αίτήσεως ακυρώσεως, δέον νά γίνη δεκτόν ότι,άφ*ής στιγμής ό αΙτούμενος ιήν άκύρωσιν 35 Reported in

(1983)3 C.L.R. 783 244 30 3 C.L.R. 5 10 15 Republic v. Louca sod Others Hadjitutastassiou J. δηλώσει δτι δέν έχει συμφέρον νάέκδικασθηή αίτησις αΰτοΰ, δέν υφίσταται πλέον ή τυπική αΰτη προϋπόθεσις, καθ' όσον ό μή στερούμενος της Ικανότητας της επί δικαστηρίου παραστάσεως είναι ό άρμοδιώτεροςde juris e de jure κριτής τοΰίδίουσυμφέροντος.Τούτουένεκενή παραίτησιςάπότοΰ α­ σκηθέντοςενδίκουμέσουτήςαίτήσεως ακυρώσεωςείναι δεκτή", ("185. The right of abandonment of a filed recourse for annulment has not been enacted by law. But given that the presence of interest is required as a prerequisite for the acceptance of the application for annulment, it must be accepted that, from the moment the person praying for the annulment declares that he has no interest in having his application tried, there does not exist any more this formal prerequisite, since the person who is not deprived of the ability to appear before the Court is the more appropri­ ate de juris e de jure Judge of his own interest. This being so the withdrawal of the already exercised legal measure of the application for annulment is acceptable"). Further the statement in the above textbook concerning the existence of legitimate interest is in line with theprinciples enun­ ciated by our case law (see Papasavas v. Republic.

(1967)3CL.R. I l l , Chnstofis v. Republic,

(1970)3 CL.R. 97) which aie to the effect that such interest must continue to subsist at the date of hearing of the lecourse. Further it has been established by our 25 case law relying in this respect on lelevant case law in Greece, that acceptance of an administrative act deprives acceptor of the legitimate inteiest to pursue a recourse. (See Tomboli v. CY.T.A.,

(1980)3 CL.R. 266, Myrianthis v. Republic,

(1977)3 CL.R. 165). Since in the instant cases the step taken by 30 respondents in pursuance of withdrawal of the recourses arose because the Republic has offered -and they have accepted com­ pensation -by way of damages they have sustained from the sub judice acts, such acceptance deprives them of the legitimate interest to pursue a recourse. 20 35 In the light of those weighty statements by Piofessor Tsatsos. I have reached the conclusion to adopt and apply them in the case^ in hand and 1 hold that the parties can withdiaw their respective proceedings. Accordingly, the appeals, the crossappeals and the recourses,having beenwithdrawn, arestruck out. 245 Hadjianastassiou J. Republic v. Louca and Others

(1984)Finally, I would like to add that having regard to the statementsbybothcounselfortheappellantandrespondentthatthey withdraw the appeals and the cross-appeals I find myself in agreement withsuch astandwhichisintheinterest ofeveryone and I repeat that both respondents aTe entitled to withdraw their two recourses. 5 A. Loizou J.: Applicant Yiannakis Louca (hereinafter to be referred to as thefirst applicant)was on the4th November, 1960,appointed as a member ofthePublicService Commission which was then established under Article 124 of the Consti- 10 tution and since then his appointment was renewed, thelast appointment havingbeenmadebythePresident oftheRepublic on the 20th June, 1979,for asix year period commencing the 1st July, 1979, and ending the 30th June,

1. Applicant Anastassiou (hereinafter to be referred to as the 15 secondapplicant)wasappointedbythePresidentoftheRepublic asa memberofthePublicServiceCommissiononthe20thJune, 1979, for a six year period commencing also on the 1st July,
2. Both applicants were on the 15th Januaiy, 1982,called to the Presidential Palace and (without myselfreferring to what 20 transpired betweenthemandthePresidentofthe Republic,with whichwearenot concerned atthisstage),werehanded identical letteisbearingthatdate,signedbythePresidentoftheRepublic, and which read as follows:"[ inform you by this letter that by vistue of Section 4, 25 subsection 3,ofthePublicServiceLawof 1967,Iterminate your appointment asa member of the Public ServiceCommission as from 18th January,
3. Itakeoccasiontoexpressthanksfor theservicesyouhave lendered". Twonewmemberswerethenappointedintheirplace,namely, Mr. Yiannakis D. Serghides, who has since then resigned, and Christakis P. Hadjiprodromou, who is still a member. Thetwoapplicantsfiled their respectiverecourseschallenging the validity of the aforesaid decision of termination of their 35 services on a number of groundsincluding the unconstitutionality of section 4, subsection 3, of The Public ServiceLaw,1967 (Law No. 33of 1967)asoffending Article 124and in particular 246 30 3 CL.R. Republic v. Louca am) Others A. Loizou J, paragraph 5thereof, read in conjunction with Article 47,paragraph(f) ofthe Constitution and Article 53, paragraphs 7and8 oftheConstitution. Thevalidityoftheappointmentofthenew members (hereinafter to bereferred to asthe interested parties) 5 was also challenged. In the oppositions filed on behalf of the respondent, the teimination oftheappointment ofthefirst applicantwas,interalia, sought to bejustified (para. 3 thereof) that he was engaged in business contrary to section 8 of the Public Service Law, 1967 10 and that it wasinthe public interest to terminate his appointment. No such ground isrelied upon in the opposition of the respondent as regards the second applicant. On the 1st September, 1982, an interim judgment was given (seeLouca v. The President oftheRepublic

(1982)3CL.R. 905). 15 The learned President who was trying these Recourses having conside/ed carefully all the material before him found that in fairness to them he should give to counsel for the parties the opportunity to advance further arguments on five issueswhich he set out therein and in the light of which he reopened the 20 hearing of the case. Arguments were then heard from all partiesand onthe21st May, 1983,hegavethepresentjudgment whichisthesubject of Revisional Jurisdiction AppealsNos.326 and 325 filed on behalf of the President of the Republic, and RevisionalJurisdiction AppealsNos.323and324,filed onbehalf 25 oftheinterestedparties,andthesubject ofacross-appealfiled on behalf of the fiist applicant. These appeals and cross-appeals were by direction of this Court heard together sitting on appeal from a judgment of a Judge of this Court and exercising its revisional jurisdiction 30 under section 11 of the Courts of Justice (Miscellaneous Provisions) Law, 1964 (Law No. 33 of 1964). In the course of the hearingand before itsconclusion counsel for the appellants and counsel for cross-appellant Louca, made a statement to theeffect that the appellants abandon or discon35 tinuetheir appeals and thecross-appeal, respectively. Furthermore, the two applicants in person asked to withdraw their recourses. This position was reached as a result of an overall settlement ofthe relevant recourses and that the applicantswere 247 A. Loizou J. Republic v. Louca and Others

(1984)expected to withdraw them having been apparently duly compensated. The question then aTosewhether an appeal can be withdrawn or abandoned without the leave of the Court or only with t>uch leaveas a matter of discretion possessed by it under the relevant 5 Rules of Court to which Ishall be shortly referring and whether a recourse filed under Article 146 of the Constitution could be withdrawn, discontinued or abandoned as of right by a litigant or whether that could be done only with the leave of the Court. Relevant to this issueisthe fact that bythejudgment appealed 10 from no conclusion wasreached, itwasinother wordsan interim judgment in view of its concluding paragraph which reads as follows: *'Ishall, therefore, allow this casetoremain pending for the period during which an appeal can be made against this 15 judgment by any party to these proceedings and if such an appeal is made, Ishall await the outcome ofthe appeal. If no appeal is made I shall then proceed to decide finally about the outcome of this case by dealing, also, inteT alia, with the aforementioned issues

(3)and

(5)". 20 Paragraph 3, mentioned hereinabove dealt with the question whether, assuming that a contravention of section 8 of Law 33 of 1967 comes within the notion of public interest in section 4

(3)thereof, the services of a member of the Public Service Commission couldbeterminated bythePresidentofthe Republic 25 for such a contravention without the member concerned being given the opportunity to refute the accusations against him in this connection. And paragraph 5 posed the question that assuming that the services of the applicant were wrongly terminated did he(the trial Judge) have toterminate theappointments 30 of both inteiested parties or one of them and in such a case of whom. Counsel for the second applicant has contended that as far as hisclient was concerned neither of the two itouesarose inasmuch as it was never contended on behalf of the President of the Re- 35 publicthat thetermination of hisservicesf.om thePublic Service Commission was based on the provisions of lection 8 of the Public Service Law, 1967. 248 3 C,L.R. Republic v. Louca and Others A, Loizou J. It may, however, be observed that there was no final order made in respect of the recourse of this applicant, either by dismissinghisrecourseorannullingthesubjudicedecision. Therefore, to my mind, for all intents and purposes, the proceedings 5 had not procedurally come to an end and the learned President had said so clearly in the passage herein above quotedthat he would allow the case to remain pending and proceed to decide finally after the appeal is determined or the lapse of time for filing an appeal if no appeal is made. 10 Upon the enactment of the Administration of Justice (Miscellaneous Piovisions) Law, 1964 (Law No. 33 of 1964), a new situation was created asregards the revisionaljurisdiction of the Supreme Court exercised under Article 146 of the Constitution. Any revisional jurisdiction, including jurisdiction on the adju15 dication of a recourse made against an act or omission of any organ, authority or person exercisingexecutive or administrative authority as being contrary to the law in force or in excess or abuse of power, could, byvirtue of section 11

(2)of the said law, be exercised subject to any Rules of Court by any Judge or 20 Judges as the Court shall determine. Provided that subject to any Rulesof Court there was given the right of an appeal to the Full Benchfrom his or their decision. As I had occasion to say in the caseofthe Republicv.Lefkos Georghiades

(1972)3 C.L.R., p. 594, at p. 690: 25 30 "This Court when heaiing an appeal fiom a judgment of one of its members, approaches the matter as a complete reexamination of the case, with due regard to the issues iaised by the parties on appeal, or to the extent that they have been left undetermined by the trial Judge or in case of a successful appeal in additiontotheabove,to theextent of the cross-appeal". The subject, theiefore, of a revisional appeal continues to be the validity of the administrative position challenged by the lecourse. Theexerciseofthisjurisdiction isgovernedbythegene35 ral principlesof Administrative Law and Rules of Court, namely, the Supieme Constitutional Court Rules, 1962and the Supreme Court (Revisional Jurisdiction) Appeal Rules of 1964, which • latter ruleswere made byvirtue oftheprovisions of section 17of Law 33of 1964to meet thenew situation c.eated bythe said law 249 A. Loizou J. Republic τ. Louca and Often

(1984)as regards appeals to the Full Bench. Rule 18 of the Suprrne Constitutional Court Rules provides:"The Civil Procedure Rules in force in the Republic on the date of the making of these Rules shall apply, mutatis mutandis, to all proceedings before the Court so far as circumstances permit or unless other provision has been madeby these Rules orunless theCourt or any Judge other­ wise directs". 5 Rule 3 of the Supreme Court(Revisional Jurisdiction) Appeal Rules of 1964, provides: 10 "The provisions of Order 35 of the Civil Procedure Rules relating to appeals shall apply, mutatis mutaidis, to an appeal froir a decision of a Judge or Judge; exercising re­ visional jurisdiction under subseciio τ 2 of section 11 of the law." 15 Oidei 35, lule 29

(3)of theCivil Procedure Rules, which is the one relevant in this issue, reads as follows:"If after an appeal is fixed for hearing the appellant wishes to abandon his appeal he may do so by giving notice in writing to the respondent and to the said Registrar, and a Judge of the Court may strike out the appeal on such terms as he thinks fit. The provisions of paragraph

(2)of this rule in regard to notice under rule 10 of this Order shall apply." 20 I donotintendto examinethese Civil ProcedureRules andthe 25 way they have been inteipreted and applied as iegards civil appeals and civil proceedings as to the extent that they can be invoked in revisional jurisdiction recourses and appeals, they have to be applied within thecontext of the GeneralPrinciples of Adrninistrative Law and one of the fundamental prerequisites 30 for the filing of such recourse is the existence of a legitimate interest which must continuetosubsist at thedate of the hearing of a recourse or at that of a revisional appeal. The acceptance of an adrninistrative act or decision deprives the person affected thereby of his legitimate interest to pursue a recourse. If any 35 authority is needed for this proposition reference may be made to the case of Maria Tomboli v. The Cyprus Telecommunications Authority

(1982)3 CL.R., p. 149, in which the Full Bench of 250 3 C.L.R. Republic τ. Louca and Others A. Loizou J. this Courtreviewed the authorities and dealt with the legal prin­ ciples governing same. As pointed out by Professor Tsatsos in his text-book "Re­ course for Annulment", 3rd Ed.,at p. 368,para. 185,relying on 5 decided cases of the Greek Council of State: 10 15 20 "The right of abandonment (ττοφαίτησις) of an appli­ cation for annulment filed is not piescribed by statute law. Given, however, that there must exist interest as a prerequisite to the admissibihty of an application for annulment, it has to be accepted that as from the moment the applicant who seeks the annulment declares that he has no intCiest for his application to be tried, there does not exist any longer this formal prerequisite, inasmuch as he who is not deprived of his ability to appear in Court is the most suitable de juris e de jure judge of his own interest. On account of this the abandonment of the already exercised judicial measure of application for annulment is acceptable. (See Decisions of the Greek Council of State NOG. 186/30, 367/30, 825/30,211/31, 352/36, 353/36, 115/37, 72/43,26/44, 470/46, 2025/52). The statement of resignation may be made even during the hearing of the case (see Decisions of the Greek Council of State Nos. 186/38, 367/30, 725/30, 2025/52). 25 When, however, the hearing of the case is over, it is unacceptable since upontheconclusion of thehearingthe right of thelitigant toaddress theCourt stops (see Decisionof the Greek Council of State No. 620/51)". In thepresent case the two applicants by their statements have to be considered as having no legitimate interest in the matter 30 once they accepted unresetvedly (and on the contrary they accepted with an undeitaking to withdraw their respective re­ courses) compensation. 35 Before concluding and in view of the importance of the issue of the constitutionality of subsection 3 of section 4 of the Public Service Law 1967, andof thefact that same refers to the powers of the President of the Republic to terminate in the public in­ terest the services of the Chainnanor any Member of the Public Service Commission, the whole matter should be reconsidered 251 Λ. Loizou J. Republic v. Louca and Others

(1984)by the Appropriate Organs of the Republic in the light of the provisions of Article 124, para. 5, of the Constitution which provides "a Member of the Commission shall not be removed from office, except onthelike groundsandin thelike manneras a Judge of the HighCourt", andin thelight of Article 47,para. 5 (f) and Article 153, paras. 7 and 8 of the Constitution. For all theabove reasons, 1 have cometo theconclusionthat the appeals and cross-appeal should be dismissed and the re­ courses struck out as having been deprived of their subject matter. SAVVIDES J.: The present appeals (four in number) and cross-appeals in Revisional Appeals 323 &326, which by dire­ ctions of this Court were heard together as presentingcommon questions of law, are directed against thejudgment of the Pre­ sident of this Courtsitting inthefirst instance,in Cases 32/82 & 15 133/82 in which thevalidity of thedecisions of the President of the Republic to terminatethe appointment of two members of thePublicService Commissionandtoreplacethemby twoothers were in issue. The two applicants were members of thePublic Service Com- 20 missionandtheirservices wereterminatedbythePresidentofthe Republic before the expiration of their term of office. As a result, they filed cases 32/82 and 133/82 challenging the deci­ sions of the President of the Republic to terminatetheir services as from January 18th, 1982 as members of the Public Service 25 Commission and also to appoint as members of thesaid Com­ mission Yiannis Serghides andChristakis HadjiProdromou, who were the interested parties in such cases. The Public Service Commission was established under Article 124 of the Constitution to discharge the functions set out in 30 Article 125.1 of the Constitution which reads as follows: **1. Savo where other express provision is made in this Constitution with respect to any matter set out in this paragraph and subject to theprovisions of any law, it shall be the duty of the Public Service Commission to makethe 35 allocation of public offices between the two Communities and to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinaiy control over, including dismissal or removal from office of, public officers". 40 252 10 3 C.L.R. Republic v. Louca and Others Savvides J. Due to the importance of the functions of the Public Service Commission and to secure their impartiality and independence from governmentalinf1uence,theholdingofofficebyitsmembers was safeguarded for the duration of their term of office by para5 graph 5of Article 124of the Constitution which provides that: "A member of the Commission shall not be removed from office excepl on the likegrounds and in the like manneTa- a judge of the High Court." In Kazamiasv. TheRepublic

(1982)3CL.R. 239,at p. 301,in 10 dealing with the object of Article 125.1 of the Constitution, I said: 15 20 "The object of the introduction in our Constitution of Article 125.1, as already explained, was to entrust the safeguarding of the efficiency and proper functioning of the publicserviceoftheRepublic,expresslyincluding theexercise of disciplinary control over public officers, to the Public Service Commission, an independent and impartial organ outtide the governmental machinery, and, at the same time, safeguaiding the protection of the legitimate interests of public officers." Thepowertoappoint a member ofthePublicServiceCommission was vested in the President and Vice-President of the Republic by Article 47(f) of the Constitution. As a result of the intercommunal troublesandthenon participation ofthe Turkish 25 members of the Public ServiceCommission in such Commission, and the fact that its functioning in the composition provided by Article 124 of the Constitution could not be carried out, the power to appoint the members of the Public Service Commision became vested in the President of the Republic under section 30 4

(1)ofLaw 33/67. BythesameLaw,thenumber ofitsmembers was reduced to 5(one Chairman and 4 members) and their term of office, subject to renewal, was fixed at 6 years (which was in linewiththeperiod provided byArticle 124of the Constitution). Under section 4

(3)of Law 33/67 the President of the Republic 35 may at any time terminate the appointment of the Chairman or of any other members of the Commission if heconsiders it to be in the public interest. Yiannakis Louca, applicant in Case 32/83 and respondent in Revisional Appeals 323, 326 was appointed as a member of the 253 Saivides J. Republic τ. Louca and Others

(1984)Public Service Commission on 4.11.1960 for six years and his appointmentwas renewed ever since,thelast of which was made on 1.7.79, ending on 30.6.

1. Antonakis Anastassiou, applicant in Case 133/82 and respondent in Revisional Appeals 324, 325 was appointed as a member of the Public Service Commission 5 on 20.6.79 for six years commencing on 1.7 79 and ending on 30.6.
2. On 15.1.82thetermof office of thetwo applicants was terminated by a letter signed by thePresidentof the Republic by which they were informed that, by virtue of section 4

(3)of the Public Service Law, 1967, their appointmentas members of the 10 Public Service Commission was terminated as from 18.1.82. Thelegality of such decision was thesubject matterof thetwo recourses filed by the applicants in which one of the issues was theconstitutionality ofsection4

(3)of Law 33/67underwhichthe purported termination of services was effected. 15 The learned President of this Court after heheard arguments bycounselonbothsidesinCase32/82,decided,onthe1stSeptem­ ber 1982, to re-open the hearing of the case and hear further argument on five issues formulated by him in the said decision (see Louca v. The Presidentof theRepublic

(1982)3CL.R. 905). 20 The reasons for having so decided, as reported at pp. 912 and 913, read as follows: "Having considred carefully all the material at present before me Γ find that in fairness to them I should give to counsel for the parties the opportunity to advance further 25 arguments on the following issues:

(1)Since no specific provision is made in Law 33/67 about the termination of the services of a member of the Public Service Commission on the ground of misconduct, such as a contravention of section 8 of Law 33/67, could 30 it have been the intention of the Legislature that in this respect paragraph 5 of Article 124 of the Constitution was to continue to be operative or is such misconduct to be treated as a matter of public interest in thesense of section 4

(3)of Law 33/67. 35

(2)Assuming that paragraph 5 of Article 124 of the Constitution has, in effect, been substituted by section 4

(3)of Law 33/67, was such a coursejustifiable on the basis of the 'Law of necessity' which led to the setting up, under Law 33/67, of a new Public Service Commission. 254 40 3 C.L.R. 5 10 15 20 Republic v. Louca and Others Savvides J.

(3)Assuming that a contravention of section 8 of Law 33/67 comeswithin the notion of public interest in section 4

(3)of the same Law, canthe services of a member of the Public Service Commission be terminated by the President of the Republic for such a contravention without the member concerned - in this instance the applicant - being given, in accordance with the rules of natural justice, an opportunity to refute the accusations against him in this connection.

(4)Isthetermination oftheservicesofa member ofthe PublicServiceCommission undersection 4

(3)of Law33/67 for acontravention ofsection 8ofthe sameLawan 'actof Government' outsidetheambitofthejurisdiction ofArticle 146 of the Constitution, even assuming that otherwise the termination of the services of a member of the Public Service Commission, under the said section 4

(3), in the public interest, for a reason other than contravention of section 8, could be found to be an 'act of Government'.

(5)AssumingthatIfindthattheservicesoftheapplicant werewronglyterminated doIhavetoterminatetheappointments of both interested parties or of one of them, and in such a case of whom. In the light ofthe foregoing I reopen the hearing of this case accordingly." 25 Arguments were subsequently heard from counsel of all parties and on 21.5.83the learned President of this Court gave aninterimjudgment (seeLouca v. The President ofthe Republic

(1983)3CL.R. 783)whichconcluded asfollows: (seepp. 791, 792 of the report): 30 "Having disposed of, on the basis of what have already beenstatedinthisjudgment, ofissues

(1),

(2)and

(4)which wereraised bytheinterimjudgment of 1stSeptember 1982, I have decided not to deal as yet with issues

(3)and

(5)which were, also, raised by the said interimjudgment, be35 cause, such issues relate to matters in respect of which it would not be necessary, or even proper, for meto reach a decision if either I do not possessjurisdiction to entertain thisrecourseunder Article 146oftheConstitution because, contrary to what I have found in thisjudgment, the termi255 Savvides J. Republic v. Louca and Others

(1984)nation of the services of the applicant in the present instance is an 'act of Government*, or because such termination,again contrary towhatIhaveheld inthis judgment. could not have been validly effected at all under section 4

(3)of Law 33/67 but only in the manner prescribed by 5 Article 124.5 of the Constitution. I shall, therefore, allow this case to remain pending for theperiodduringwhichanappealcanbemadeagainstthis judgment by any party to theseproceedingsand if such an appeal ismade Ishall awaittheoutcome oftheappeal. If 10 no appeal is made I shall then proceed to decide finally about the outcome of this caseby dealing, also, inter alia, with the aforementioned issues

(3)and

(5)." On the same date an interimjudgment was also delivered in Case 133/82 adopting the reasons given in Case 32/82 and em- 15 bodyingthesamedirectionsastotheadjournment ofthe further hearing of the case on its merits, pending the expiration of the period duringwhich an appealcould bemadeand incaseofan appeal, pending the outcome of such appeal. Against suchjudgments the present Revisional Appeals were 20 filed as follows: R.A. 323and 324on behalf of the interested parties, R.A. 325and 326on behalf of the President of theRepublicand cross-appeals in R.A. 323and 326bythe respondent in such appeals, Yiannakis Louca. Inthecourseofthehearingoftheseappealsandcross-appeals 25 andbeforethehearingwasconcluded,counselfor theappellants and cross-appellant informed the Court of their intention to abandon theappealsand thecross-appealsinviewofanoverall settlement reached. Furtheimore, the two applicants stated in Court that they did not wish to pursue their recourses any 30 further and asked to withdraw same. As a result a question aroseastowhetherleavefromtheCourtisrequiredfor thewithdrawal of the appeals, the cross-appeals and the recourses, on which counsel were invited to address the Court. The right of abandonment of a recourse accoiding to the 35 principles of the Greek Administrative Law as expounded by Professor Tsatsos in his text-book "Recourse for Annulment", 3rd Ed., relying on the jurisprudence emanating from the de256 3 C.L.R. Republic v. Louca and Others Savvides J. cisions of the Greek Council of State, iιdescribed as follows at p. 368: 5 10 '5 20 25 30 "185.-TO δικαίωμα τής παραιτήσεως άπό της υποβλη­ θείσης αΙτήσεως ακυρώσεως 6έν έ*χει θεσπισθηδιατοΰ νόμου. Δοθέντος όμως, ότι απαιτείται ή παρουσίασυμφέροντοςώς προϋπόθεσις της παραδοχής της αΙτήσεως ακυρώσεως, δέον νά γίνη δεκτόν ότι, άφ' ής στιγμής ό αίτούμενος τήν άκύρωσιν δηλώσει ότι δέν έχει συμφέρον νά έκδικασθηή αί­ τησις αΰτοΰ, δέν υφίσταται πλέον ή τυπική αύτη προϋ• πόθεσις, καθ' όσον ό μή στερούμενος τής Ικανότητοςτής επί δικαστηρίου παραστάσεως είναι ό άρμοδιώτερος de juris e de jure κριτής τοΰ Ιδίου συμφέροντος. Τούτου ένεκεν ή παραίτησις άπό τοΰ ασκηθέντος ήδη ενδίκου μέσου της αίτήσεως ακυρώσεως είναι δεκτή. Ή περί παραιτήσεως δήλωσις δύναται νά ύποβληθή και διαρκούσης έτι της συζητήσεως της υποθέσεως....". ("185. The right of abandonment of a filed recourse for annulment has not been enacted by law. But given thatthe presence of interest is required as a prerequisite for the acceptance of the application for annulment, it must be accepted that,from the moment the person praying for the annulment declares that he has no interest in having his application tried, there does not exist any more this formal prerequisite, since the person who is not deprived of the ability toappear before theCourtis themoreappropriatede juris e de jure Judge of his own interest. This being so the withdrawal of the already exercised legal measure of the application for annulment is acceptable. The statement about the abandonment may be submitted even during the fcial of the case "). It is clear from the above thatthe applicant in a recourse both ρτίοτ to the hearing or in the course of the hearing is entitled to abandon hisrecourse anddivest himself of any legitimate interest entitling him to pursue his recourse upto the end. As rightly 35 described in the above extract he is the most competent de juris e de jure judge of his own interest. I fully agree with the opinionexpressed by my learned brother Judges Hadjianastassiou and Loizou, based on the relevant case 257 Savvides J. Republic v. Louca and Others

(1984)lawofthisCourt and thejurisprudence ofthe Greek Councilof Statethat thetwoapplicantsbytheir statementshavetobeconsidered ashavingbeen deprived ofany legitimateinterest in the matter once they have accepted unreservedly compensation by wayofdamagestheyhavesustainedfromthesubjudicedecision. 5 It iswellsettled that legitimateinterest must continueto subsist at the date of the hearing of the recourse (Papasavvas v.The Republic

(1967)3 CL.R. Ill, Christofis v. TheRepublic

(1970)3 C.L.R. 97). I have already described the judgment under appeal as an 10 interimjudgment and not afinaljudgment in thefirstinstance. Thisisclear from thecontents of suchjudgment towhich referencehasalreadybeenmadewherebythereisnofinalconclusion butthecaseswereallowedtoremainpendinguntildetermination of an appeal and theirfinaloutcome would be considered after 15 the determination of the appeal. I wish further to add that it is well settled that when the Full Bench of the Supreme Court is seized of a revisional appeal, the proceedings are to be regarded "as a continuation before it oftheproceedings in the recourseconcerned whichtookplace,inthefirstinstance,before 20 a judge of the Court; and what, in essence, continues to be in issue at the stage of the revisional jurisdiction appeal is still the validity of the subject-matter of the particular recourse inwhich theappealed fromjudgment hasbeen given" (Christou andothers v. TheRepublic

(1982)3CL.R. 634at p. 639. See 25 also The Republic v. Lefkos Georghiades

(1972)3 CL.R. 594 at p. 690). I have, therefore, come to the conclusion that the applicants are entitled to withdraw their recourses and the appellants and cross-appellants to withdraw their appeals and cross-appeals. 30 BeforeconcludingIwishtoaddthat Isharetheviewexpressed bymylearned brother JudgeA. Loizou, that inview oftheimportant constitutional issues which have been raised by these recourses and have been argued before us on appeal, and in particular the issuetouchingtheconstitutionality ofsub-section 35

(3)of section 4 of Law 33/67 in the light of the provisions of Article 124.5 of the Constitution, the position should be reconsidered by the Appropriate Organs of the Republic so that the independency and impartiality of the Public Service CommissionwhichIstressedintheKazamiascaseissafeguarded. 40 258 3 C.L.R. Republic v. Louca and Others SavvidesJ. For all theabove reasons, Ihave cometo theconclusionthat the appeals and cross-appeals should be dismissed and there­ courses struck out. LORISJ.: Inthecourseof thehearing of thepresent appeals 5 and the cross-appeal in Revisional Appeal 325 (which were being heard together) learned counsel for all appellants made a statementtotheeffect thattheywere abandoningtheirrespect­ ive appeals. Learned counsel appearing for respondent—cross-appellant 10 in R.A. 325 stated, inter alia, that "It was within thediscretion of the Court to allow such an abandonment;if leave were to begrantedfor such anwithdrawal-abandonment,heconcluded, hewouldlikewisewithdraw hiscross-appeal". Learnedcounsel appearingfor respondentin R.A. 326confined himself insaying 15 thathaving nocross-appeal hewould be satisfied with thewith­ drawal of the appeal against his client. At this stage counsel for appellants in R.A. 323 and 324 stated that the abandonment of the appeals was the result of an overall settlement of the substance of the relevant recourses 20 and that the applicants in the aforesaid recourses, notably respondents in R.A. 325 and R.A. 326 were expected to with­ draw their recourses as well;this stand of the aforesaid counsel was adopted by counsel appearing for the Republic in R.A. 325 and R.A. 326. 25 This firm demand of counsel for appellants was met in a somewhat confused way by counsel appearing for the res­ pondents: both counsel for the respondents stated before us that in spite of the fact that they themselves had theviewthat their clientscould not andshould notwithdraw their respective 30 recourses, yet their clients wished to withdraw same. Theclients in question,whowere present, on being asked by Court to express their wishes as to the fate of their respective recourses replied as follows: A. Anastassiou: Ζητώ νά τήν αποσύρω. 35 Υ. Louca: Επιθυμώ όπως τήν αποσύρω. Itwas submitted by learnedcounselappearingfor respondent in R.A. 326 that his client could not withdraw his recourse as 259 Loris J. Republic v. Louca and Others

(1984)in his opinion the case in respect of his client before the trial Court was already concluded. Learned counsel for respondent in R.A. 325 submitted that although the case in respect of his client was still incomplete in the trial Court and "τυπικώς" his client is entitled to 5 withdraw his recourse yet as the case involves serious consti­ tutional issues this Court should proceed to pronounceon the merits refusing leave to withdraw the recourse. As both counsel of respondents in R.A. 325 and 326 referred to the "Judgment" of the trial Court I feel duty bound to 10 examine very briefly the judgment in question: It is abundantly clear from the record of R.A. 326 (80-88) that the learned President of this Court after ruling in an interim decision given on 1.9.1982 invited further argument on five preliminary points. On 21.5.1983 he gave his decision on three 15 out of the said five points directing at the same time as follows: " I shall, therefore, allow tins case to remain pending for the period during which an appeal can be made against the decision by any party to these proceedings and if such an appeal is made I shall await the outcome of the appeal. 20 if no appeal is made I shall then proceed to decide finally about the outcome of this case dealing also, inter alia, with the aforementioned issues

(3)and

(5)". It is abundantly clear to my mind taking into consideration the aforesaid decision as a whole and in particular the passage 25 quoted above, that the cases of both respondents were notcon­ cluded before the trial Court;definitely in the case of respondent in Revisional Appeal 325 there are.two more legal issues to be determined and this was so conceded. As regards respondent in R.A. 326 it is true that three legal 30 issues were disposed of. But it was unpredictable whether new legal issues would have been raised by anyone of the litigants or even by the Court acting ex proprio motu at the trial which was to be continued before the trial Court, after the deter­ mination of the present appeals. Inany event theissues decided 35 were neither applied to the facts of that particular case nor was any final conclusion in respect thereof drawn by thetrial Court in view of the direction referred to above. 260 3 C.L.R. Republic τ. Louca and Other* Loris J. The present appeals were taken against this decision and the re-examination of these cases started all over from the beginning before us as "this Court, when hearing an appeal font a judgment of one of its members, approaches the matter as a 5 complete re-examination of the case with due regard to the issues raised by the parties on appeal, or to the extent they have been left underterminedby thetrial Judge or in case of a success­ ful appeal in addition to the above to the extent of the crossappeal". (Vide The Republic v. Lefkos Georghiades

(1972)10 3 CL.R. 594 at p. 690). It is during the hearing of these appeals and the cross-appeal, as already stated at the beginning hereof, that the statements of the withdrawal-abandonment of the appeals and the crossappeal were made by counsel; and it is at this same stage that 15 the two respondents, who were present in Court during the proceedings before us, expressed their wish to withdraw their original recourses as well. 20 Having given the matter anxious consideration I have come to the conclusion that we are confronted with a serious matter of substantive law rather thanwith a simple matter of procedure which is undoubtedly regulated by the Supreme Court (Revi­ sional Jurisdiction) Appeal Rules, 1964. (Vide BrancaSalvage Ltd., v. The Republic

(1967)3 CL.R. 213). As regards the substantive law it is true that in Cyprus the 25 right of an appUcantto "resign" (τταραίτησις) from a recourse has not been enacted by law. In the circumstances we are perfectly entitled to use Greek authorities on the matter as a guide for the purpose of deciding such an issue of administrative law which falls for determination. 1Λ 35 In the 3rd edition of Tsatsos on theapplication for annulment before the (Greek) Council of State at p. 368 para. 185 we read the following. " 185. To δικαίωμα τής παραιτήσεωςάπό τής υποβληθείσης αΙτήσεως ακυρώσεως δέν έχει θεσπισθή διά τοΰ νόμου. Δοθέντος δμως, ότι απαιτείται ή παρουοία συμφέροντος ώς προυπόβεσις ι ης παραδοχής της αΙτήσεως ακυρώσεως, δέον νά γίνη δεκτόν ότι, άφ' ής στιγμής ό αΙτούμενος τήν άκυρωσιν δηλώσει ότι δέν έχει συμφέρον νά έκδικασθή ή αίτησις αύτοϋ," δέν υφίσταται πλέον ή τυπική αύτη προ261 Loris J. Republic τ. Louca and Others

(1984)ϋπόθεσις, καθ* δσον ό μή στερούμενος τής. Ικανότητας της έπϊ δικαστηρίου παραστάσεως είναιό άρμοδιώτερος de juris e de jure κριτής τοΰ Ιδίου συμφέροντος. Τούτου ένεκεν ή παραίτησις άπό τοΰ ασκηθέντος ήδη ενδίκου μέσου τής αΐτήσεως ακυρώσεωςεΐναι δεκτή. 5 Ή περί παραιτήσεως δήλωσις δύναται νά ϋποβληθή καΐ διαρκούσης ετι τής συζητήσεως ιής υποθέσεως " . ("

1. The right of abandonment of a filed recourse for annulment has not been enacted by law. But given that the presence of interest is required as a prerequisite for the 10 acceptance of the application for annulment, it must be accepted that, from the momentthe person praying for the annulment declares that he has no interest in having his application tried, there does not exist any more this formal prerequisite, since the person who is not deprived of the 15 ability to appear before the Couit is the more appropri­ ate de juris e de jure Judge of his own interest. This being so the withdrawal of the already exercised legal measure of the application for annulment is acceptable. The statement about the abandonmentmay be submitted even during the trial of the case "). 20 In case 352/36 decided by the Greek Council of State (at p. 797 and 798) the applicant who was dismissed by the Muni­ cipality of Athens from his post as anight-watchman challenged by means of recourse of annulment the aforesaid decision of 25 the Municipal Committee dated 11.7.1934; some five months thereafter on 22.12.1934 he submitted written statement to the Council of State to the effect that he received from the respondent Municipality and amount of money stating at the same time that he was resigning his recourse before the Council 30 of State. After such a statement the the sub judice application was deprived of its object and the trial in question was declared abolished (καταργηθείσα). Similar to this case is case No. 353/36 also decided by the Greek Council of State. In view of the fact that our Constitution provides by virtue 35 of Article 146.
2. that an "existing legitimate interest" is "sine qua non"condition for a successful recourse underArticle 146.1, in view of the facts of these particular appeals and in particular 262 3 CL.R. Republic τ. Louca and Others Loris J. in view of the statements made by respondents themselves, (applicants in the original recourses) before us, and in the light of the authoritiescitedabove Ihold theviewthattherecourses in question should be struck out as they have been deprived 5 of their object andall appeals includingthecross-appeal should be dismissed. In the circumstances Γ would not make any order as to costs either of the recourses or the appeals and the cross-appeal. STYLIANIDES J. In thecourse of the hearing of fourappeals 10 by therespondent andtheinterested parties and a cross-appeal by one of the applicants against a decision of the President of the Court on issues formulated by him in another interim decision, counsel for the appellants and thecounter-appellant stated that they abandon ("παραιτούνται") the appeals 15 andthecross-appeal, respectively. Theapplicants-respondents personally applied to withdraw their recourses. The question that arises is what the Court should do. The administrative law and justice were introduced in this country by Article 146 of the Constitution that conferred ex20 elusive jurisdiction on the Supieme Constitutional Court composed of three Judges to adjudicate finally on a recoxrse madetoit ona complaintthata decision,anact or omission of any organ, authority or person exercising any executive or adniinistrative authority is contrary to any of the provisions 25 of the Constitution or of any Law or is made in excess or in abuse of powers vested in such organ or authority or person. Therevisional jurisdiction underArticle 146was being exercised always by the Full Bench of that Court. Due to theevents of December, 1963, by theAdministration 30 of Justice (Miscellaneous Provisions) Law, 1964 (Law No. 33 of 1964) the Supreme Court of Cyprus was established as a constitutional continuity with all the rights and jurisdiction that vested in thetwo Courts provided in the Constitution,i.e. the Supreme Constitutional Court and the High Court. 35 Section 11 of Law No. 33/64 reads as follows:"11.

(1). Any jurisdiction, competence or power vested in the Court under section 9 shall, subject to subsections 263 Stylianides J. Republic ν, Louca and Others

(2)and

(3)and to any Rules of Court, be exei-cised by the full Court.

(2). Any original jurisdiction vested in the Courtunder any law in force and any revisionaljurisdiction, including jurisdiction on the adjudication of a recourse made against an act or omission of any organ, authority or person exer­ cising executive or administrative authority as being con­ trary to the law in force or in excess or abuse of power, may be exercised, subject to any Rules of Court, by such Judge or Judges as the Court shall determine: 5 10 Provided that, subject to any Rules of Court, there shall be an appeal to the Court from his or their decision.

(3). Any appellate jurisdiction vested in the Court shall, subject to any Rules of Court, be exercised by at least three. Judges nominated,by the Court. 15 Eachsuchnominationshall be madeinrespect of a period of four months at the beginning of such period". . Thejurisdiction exercised by a Judge or Judges of the Supreme Court under subsection

(2)of section 11 is vested in the Full Supreme Court, and not in the said Judge or Judges as such, 20 as is the case with the jurisdiction vested in Judges of District Courts and Assizes, from whose decisions an appeal lies to the Supreme Court. It is only for reasons of expediency that a Judge or Judges of the Supreme Court may exercise such juris­ diction. The litigant concerned, however, is entitled to have 25 the matter adjudicated uponby theFullCourt wherein thejuris­ diction in effect lies. The legislator made a distinction between appeals from thedecision of one or moreJudges of the Supreme Court to the Full Court onthe onehand and appeals from other Courts with inferior jurisdiction on the otherhand. Thedistin- 30 ction is due to the difference between the two jurisdictions. (Attorney-General v. Ibrahim, 1964 CL.R. 195; Republic v. Christakis Vassiliades,

(1967)3 CL.R. 82). The legislator provided for these two kinds of appeals in two different sub­ sections of the same section. 35 The jurisdiction to grant a remedy by means of a recourse for annulment as provided by Article 146.1 is not an innovation 264 3 CL.R. Republic v. Louca and Others Stylianides J. of the drafters of the Constitution of Cyprus but it was veited in the Supreme Constitutional Court in order to c eate thus an administrative Court on the model of administrative Coiuts. such as Councils of State, in other countries. This has been 5 recognized on more than one occasion by the Supreme Constitutional Court. (See, inter alia, The Holy See of Kitium and The Municipal Council of Limassol, I R.S.C.C. 15, at p. 21, and Kyriakides and The Republic, I R.S.C.C 66, at p. 69). So, even though the wording of Article 146.1 is somewhat 10 different from provisions defining the jurisdiction of administrative Courts in other countries, general principles of administrative law governing the availability of the remedy under Article 146.1 have to be taken, as far as possible, into account in denning the extent of the jurisdiction under the said Article. 15 A recourse is aimed at an administrative decision. The subject-matter of a revisional appeal continues, in substance. to be the administrative decision which is challenged by the recouise; and whether or not the applicant is entitled to the relief claimed. (Costas Pikis v. The Republic, Minister oj Interior 20 andAnother,

(1968)3 CL.R. 303, at pp. 305-306). The jurisdiction of this Court emanates from Article 146 of the Constitution and is defined therein, and the jurisdiction of the Greek Council of State sitting on appeal from the decisions of the ordinary administrative Courts is not analogous to the juris25 diction of this Court. (Miltlades Papadopoulos v. TheRepublic.

(1970)3CL.R. 169,at p. 173;TheRepublicv. SavvasPerikleous.

(1972)3 CL.R. 63, at p. 68). The question to be determined in a revisional appeal continues to be the validity of the administrative decision which is chal30 Ienged by the recourse, as now seen in the light of the proceedings before the tiial Judge, including his judgment. The recourse under Article 146 is made to the Court; and its subject is all along the validity of the administrative act or decision challenged. (Constant'mules v. The Republic, {Minister of 35 Finance),

(1969)3 CL.R. 523, at p. 530). The Court in a revisional appeal is seized with the recourse itself. When hearing an appeal from a judgment of one of its members,it approaches the matter as a complete ie-examination of the case with regard to the issues raised by the parties on 265 Stylianides J. Republic v. Louca and Others

(1984)appeal or to the extent that they have been left undetermined by the trial Judge or in case of a successful appeal in addition to the above to the extent of a cross-appeal. The litigant is entitled to the opinion of the Court. (TheRepublic v. Lefkos Georghiades,

(1972)3 CL.R. 594). TriantafyHides, P., in David Christouand Others v. The Republic of Cyprus,

(1982)3CL.R. 634,at p.639,said:"I would, indeed, be inclined to the view that there is nothing to prevent the filing of applications such as those now befoie me because, in the light of the relevant 10 provisions of section 11 of Law 33/64, a revisional jurisdiction appeal is to be regarded as a continuation before the Full Bench of the Supreme Court of the proceedings in the recourse concerned which took place, in the first instance,before a Judgeofthe Court; andwhat, inessence, 15 continues to be in issue at the stage of therevisionaljurisdiction appeal is still the validity of the subject-matter of theparticularrecourseinwhichtheappealedfromjudgment has been given". In the recent Revisional Jurisdiction Appeal No. 316 (still 20 unreported) the Court dismissed the recourse of the appellants on the ground that they did not possess a legitimate interest at the time of the filing of the recourse, as envisaged byArticle 146.2 of the Constitution, a ground that was not raised before and was not dealt with by the first instance Judge. 25 Thejurisdiction of theCourt isexercisedsubject to the Rules of Court. (The Supreme Constitutional Court Rules, 1962, and the Supieme Court (Revisional Jurisdiction) Appeal Rules, 1964). The Supreme Court Rules, 1962, r. 18, provides:30 "The Civil Procedure Rules in force in the Republic on the date of themaking of these Rules shall apply,mutatis mutandis, to all proceedings before the Court so far as circumstances permit or unless other provision has been madebytheseRulesorunlesstheCourtoranyJudgeother- 35 wise directs". The Supieme Court (Revisional Jurisdiction) Appeal Rules, 1964, r. 3, reads:266 5 3 CL.R. Republic v. Lonca and Others Stylianides J. "The provisions of Order 35 of the Civil Procedure Rules relating to appeals shall apply, mutatis mutandis, to an appeal from a decision of a Judge or Judge exercising revi­ sional jurisdiction under subsection

(2)of s.11 of the Law". 5 The latter rule was considered in relation to enlargement of time for filing appeal from a decision of a Judge of the Supreme Court in Branco Salvage Ltd. v. Republic of Cyprus,

(1967)3 CL.R. 213, and in relation to a ground for annulling a promo­ tion not amounting merely to a new question of Law based on 10 facts admitted or clearly proved before the trial Judge inChristodoulosNissis (No. 2) v. The Republic of Cyprus, through the Public Service Commission,

(1967)3 CL.R. 671, and for extension of time within which to file an appeal in Cyprian Seaway Agencies Ltd. and Others v. The Republic of Cyprus, 15

(1981)3 CL.R. 271). 20 25 30 In the application of the Civil Procedure Rules, both under r. 18 of the Supreme Constitutional Court Rules, 1962, and r.3 of the Supreme Court (Revisional Jurisdiction) Appeal Rules, 1964,regard should behad tothefundamental difference between a civil action and a recourse. For a recouise to be entertained by a Court, the applicant must have a legitimate interest. The object of the administrative jurisdiction is the judicial control of the acts of the Administration. The Court carries out an inquiry. The principles of adrninistrative law and the procedures obtaining in countries of the Continent, such as Greece and France, where administrative Courts function, influenced to a great extent our administrative law, practice and procedure. The wording of the rules that make mutatis mutandis the Civil Procedure Rules applicable lends very strong support to this proposition. The Civil Procedure Rules are not applicable where the nature of the administrative jurisdiction does not permit it. In Tsatsos—Application for Annulment—3rd Edition, p. 368, we read:- 35 40 " 185. To δικαίωμα της παραιτήσεωςάπό τής υποβληθείσης αΙτήσεως ακυρώσεως δέν ί-χει θεσπισθή δια τοΰ νόμου. Δο­ θέντος Ομως, ότι απαιτείται ή παρουσία συμφέροντος ώς προϋπόθεσις της παραδοχής της αΐιήσεως ακυρώσεως, δέον νά yivr) δεκτόν ότι, άφ* ής στιγμής ό αίτούμενος τήν άκύρωσιν δηλώσει ότι δέν Εχει συμφέρον νά έκδικασθή ή 267 Stylianides J. Republic \. Louca and Others

(1984)αίτησις αΰτοΰ, δέν υφίσταται πλέον ή τυπική αύτη προϋττόθεσις, καθ' Οσον 6 μη στερούμενος τής ικανότητας τής έπϊ δικαστηρίου παραστάσεωςείναι άάρμοδιώτερος de juris e de jure κριτής τοΰ Ιδίου συμφέροντος. Τούτου ένεκεν ή παραίτησις άπό του ασκηθέντος ήδη ενδίκου μέσου της αίτήσεως ακυρώσεως εϊναι δεκτή". 5 0*

1. The right of abandonment of a filed recourse for annulment has not been enacted by law. But given that the presence of interest is required as a prerequisite for the acceptance of the application for annulment, it 10 must be accepted that,from the momenttheperson praying for the annulment declares that he has no intciest in having his application tiled, theie does not exist any more this formal prerequisite, since the person who is not deprived of the ability to appeal before the Court is the more appro- 15 p.iate de juris e de jure Judge of his own inte.cst. This being so the withdrawal of the already exercised legal me­ asure of the application for annulment is acceptable"). (Cases No. 186/30, 367/30, 825/30, 211/31, 352/36, 353/36, 115/
2. 72/43, 26/44, 470/46, 2025/52). 20 (See also H. G. Kyriacopoulos—Greek Administrative Law— " C " , pp. 128-129). In a number of cases (see, inter alia, Ca'-cs of the Greek Council of State No. 1820/1948, 925/1950, 1854/1951 and 2130/ 1952), the Greek Council of State held that "παραίτησις 25 χωρεί νομίμως και μετά τήν συζήτησιν" (a recourse may be abandoned even after the hearing). The applicant is the best Judge of his case. He is entitled to withdraw his recourse to the Court at any time before judgment. This is in some way further supported by Article 30 of the 30 Constitution and A.tide 6 of the Convention on Human Rights whereby the right of access to the Court is safeguarded, and "the right of access" implies, in my view, a right to withdraw from the Court. The recourses have to be dismissed. The Court is not pro- 35 nouncing on legal and constitutional issues unless it is necessary for the determination of a dispute before it. 268 3C.L.R. Republic v. Louca and Others Stylianides J. In this case questions of legal and constitutional natu e were raised. Due to the course that these cases have taken, it is not permissible to pronounce obiter on them. I should not. however, be taken that I agiee with the judgment of the fi.:t 5 instance Judge on ail the points dealt with by him. It is upon the appropriate organs of the State to consider the issues laiscd. In the result the appeals, the Cioss-appeal and the recourses are he.eby dismissed with no order as to costs. PIKIS J.: Yiannakis Louca and Antonios Anastassiou were 10 appointed members of the Public Service Commission for a six-year period from 1.7.1979 to 30.6.
3. Before the expiration of their term, the President of the Republic terminated their services by a decision published on 22.1.
4. The notice of termination in the Gazette does not reveal the reasons for 15 the decision. At first, they were invited to submit their resignation. In face of their refusal, the P.esident of the Republic terminated their services in exercise of the powers verted in him by sub-section 3 of seciion 4 of the Public Sc.vice Law— 33/67, and notified them accordingly by a letter dated 15.1.
5. 20 At the same time, he exp.esscd appreciation for the feivices rendered by the dismissed members of the Public Service Commission. They challenged the legality of the act whereby their services wereterminated and, sought its annulment by iecourres filed uudeT Article 146.1 of the Constitution. On behalf of 25 the Attorney-General, it was contended the action of the President constituted an act of gove.nment (act de gouvernement) inamenable to judicial review. And as such, it fell outside the sphere of judicial review of administrative or executive action. Briefly, acts of government are governmental actions of a pre30 dominantly political character, for which the gove.nment is politically but not legally accountable. Originally, the concept was evolved in France but gained acceptance in other continental jurisdictions, including Gieece. It bears some similarit) to the doctrine of "Acts of State" under English law, although 35 the two concepts are distinct and have but few features in common. It is difficult to trace a comprehensive definition of acts of government incontinental law. There isa noticeable tendency, however, towards limiting, in the interests of the TUIC of law the class of government actions that are beyond judicial 40 review. (The subject is discussed in almost e\eiy textbook of 269 PuisJ. Republicy.LoucaandOthers

(1984)administrative law—See, inter alia, Modern Tendencies of the Principle of Legality in Administrative Law, by Tachos, pp. 38-42; The Application for Annulment beforethe Greek CouncilofState,by Tsatsos, 3rded., pp. 175-180). In thecase ofoneofthetwoapplicants,namely Yiannakis Louca,anaddi- 5 tionalreasonwasgivenforhisdismissal,that is,hisengagement in business activities, contrary to the provisions of s.8 of the Public Service Law, prohibiting the exercise of an occupation or engagement in a profit-making activity, .without the prior permission of the Council of Ministers. If at all relevant to 10 the decision of the President, the decision wasnot taken in the exercise of disciplinary jurisdiction over the member. No opportunity wasever givento himto answer thecharges before dismissal. In thecaseofAnastassiou, termination wasjustified solelybyreferencetotheallegedpowerofthePresidenttoterm- 15 inate atwill services of membersof thePublic ServiceCommission under s.4

(3)of Law 33/67. The applicants disputedthe validity of the assertion that the action of the President wasin thenatureofan"actdegouvernement". Moreconsequentially, they challenged the constitutionality of sub-section 3of section 20 4, conferring power on the President to terminate services of members of the Public Service Commission on the ground it wasinconsistent withtheletter of Article 124.5 of the Constitution and defied the spirit of the Constitution, as manifested in Chapter 1of Part VIIof the Constitution providing for the 25 establishment of the Public Service Commission, an independent body with sole responsibility for the manning of the Public Service. UndertheConstitution, membersof thePublic Service Commission enjoy security of tenure as Judges of the HighCourt andareliableto bedismissedin alikemanner,that 30 is, by a decision of the Supreme Council of Judicatuie. Proceedingsbefore the Council are of ajudicial nature (see,Article 153 of the Constitution). Thebasicissuesbeforethetrial Court were,if Icanthuscondense them— (

1. a)The constitutionality of sub-section 3 of section 4 of the Public Service LAW, if constitutional, (
2. b)the nature of the action of the President taken under sub-section 3 and, in the case of Yiannakis Louca 270 35 3 CL.R. 5 Republic v. Louca and Others Piltis J. (
3. c)whether the action was warranted in view of alleged breach of the provisions of s.8 of the Law. Given that theactionofthePresidentwasnotassociatedwith the exercise of disciplinary powers the strength of the casefor theRepubliconthisscore,wasseverelyweakened. Although the parties concluded the argument and exposition of their case before the trial Court, the trial Judge did not disposeofthecaseinitsentirety. Heheldbackafinaldecision, 10 sofar as I maygather from hisjudgment, in expectation ofthe judgment on appeal that he anticipated on the issues resolved by his judgment. Leaving aside criticism made by counsel, of the inconclusiveness ofjudicial action, it is more than clear that the learned President resolved the two most consequential 15 issues in the proceedings, those listed under (
4. a)and (
5. b)above, that is, the constitutionality of subsection 3 of section 4 and, the nature of the Presidential action. The decision sealed, as Mr. Papadopoulos correctly—it seems to me—submitted, the outcomeoftherecourseof Mr.Anastassiou. Theaction ofthe 20 termination of services of Anastassiou was doomed to annulment upon dismissal, of the contention of an unqualified right vesting in the President to terminate his services. The points left unresolved, namely 3 and 5, were confined to the case of Yiannakis Louca. 25 The Attorney-General appealed on behalf of the Republic, againsttheabovedecisiononthegroundthetrialCourtwrongly held that the act of the President wassubject tojudicial review under Article 146.1. They sought vindication of their position on appeal. The trial Court wrongly decided, according to 30 the notice of appeal, that the decision of the President wasnot an act of government. An appeal"was alsofiledby the interested parties, namely Sergides and Hadjiprodromou, appointed bythePresidenttoreplaceLoucaandAnastassiou. Theyjoined in theargument that theaction of thePresident wasbeyond the 35 scope ofjudicial review. Yiannakis Louca took a cross-appeal mostly directed against that part of the judgment of the trial Court, holding the law to be constitutional. In the judgment of Triantafyllides, P., the Public Service Commission, set up by Law 33/67, is an altogether different body from the Public 40 Service Commission envisaged by the Constitution. Hence, appointment and termination of the service of its memberswas 271 Pikis J. Republic t. Louca and Others

(1984)not governed by the provisions of Article 124.5 of the Constitution. In so holding, the learned Judge derived support from a previous decision of his own, notably, Hadjianastassiou v. Republic

(1983)3 CL.R. 1173, where the juridical basis of the Public Service Commission was reviewed. Counsel for the 5 appellant strenuously argued the doctrine of necessity could n:>t possibly permit departure from the provisions of the Constitution, except to the extent strictly necessatV. to tidy over the emergency and fill the vacuum created by the withdrawal of the Turkish membe.s of the Public Service Commission. 10 Counsel for Anastassiou espoused this submission in answer to the appeal of the Republic. No need arose in his care, Mr. Papadopoulos explained, tofilea cross-appeal for the judgment given sealed, except in name, the outcome of the recourse of his client. What remained was.a forma! order of annulment. 15 A somewhat detailed reference was made to the background of the proceedings notwithstanding applications for leave to withdraw the appeal and cross-appeal, for reasons that will* be presently explained. The Court has a discretion in the matter, as all counsel have acknowledged. And, in my 20 judgment, the discretion is not taken away by the decision of the applicants to withdraw their recourses. Paties to litigation cannot, by a unilateral act, extinguish a judgment at first instance. So,to acknowledge would betantamount to recognising a right to a litigant to thwait the judicial process. Nor is it 25 permissible under the Rules. Rule 18 of the Rules of the Supreme Court makes applicable, mutatis mutandis and, so far as circumstances permit, the Civil Proceduie Rules in the conduct and pursuit of litigation under Article 146.1 of the Constitution. They are also applicable to proceedings under 30 s.l 1

(2)of the Courts of Justice (Miscellaneous Provisions) Law —33/

1. The Civil Procedure Rules iiwlude Order 15, regulating the circumstances under which an action may be discontinued or withdrawn. Withdrawal or discontinuance is impermissible without the prior leave of the Court, after a step 35 is taken in litigation subsequent to defence. In granting leave, the Court may impose such terms, as may appear to it just. The.c is nothing to exclude the application of Ord. 15 in the conduct of litigation under Article 146.
2. On the conuaiy, pleadings follow a similar order and there isai leastjust a strong 40 justification, if not stronger, for the application of Oru. 15 272 3 C.L.R. 5 10 15 20 25 30 Republic v. Louca and Others Pikis J. to proceedings under Article 146.
3. The legality of action in the domain of public law, is at issue. The exercise of the rights of a litigant must not be at the expense of justice of legality. The discretion ofthe Court under Ord. 15,R.1,isexercised judicially, in the light of the facts of the case and in the interests of justice (see, Hess v. Labouchers (14 T.L.R. 350); Fox v. Star NewspaperCo. [1899] 69 L.J. Q.B. 117; Tsirouv. Shitta

(1974)6J.S.C.753,ajudgment of Loris, P.D.C., ashethenwas). However, the issue is somewhat academic for, by a subsequent Rule of the Supreme Court, namely, that regulating appeals in the area of revisional jurisdiction, the provisions of Ord. 35 of the Civil Proceduic Rules, were made, mutatis mutandis, applicable to appeals under sub-section 2 of s.11of Law 33/64. The decision of the Full Bench of the Supreme Court, in Branco Salvage Ltd.. v. Republic

(1967)3 CL.R. 213, establishes, to my comprehension, that the right to appeal, as well as its exercise, a^e regulated by the provisions of Ord. 35 of the Civil Procedure Rules*. Moieover, it strongly suggests, no doubt in view of the provisions of r. 18 of the Rules of the Supreme Court, that the Civil Procedure Rules apply, mutatis mutandis. intheir entirety,inthe pursuit ofproceedings under Article 146.1 of the Constitution. After an appeal is fixed for hearing, its abandonment is subject to the discretion of the Couit that may condition withdawal on such terms as it thinks fit. It reads: "Ord. 35 R. 29

(3): If after an appeal is fixed for hearing the appellant wishes to abandon his appeal he may do so by giving notice in writing to the respondent and to the said Registrar, and a Judge of the Court may strike out the appeal on such terms as he thinks fit. The provisions of paragraph

(2)of this rule in regard to notice under rule 10 of this Order shall apply". It is foT this reason I made reference to the background and issues in the proceedings in order to be guided by such facts in the exercise of my discietion. Order 35 r. 29

(3)imports 35 discretion comparable to that vested in the Court of Appeal in England, under Rules of Coua, with iegard to withdrawal* of appeals. In Tod Heatley v. Barnard—The Weekly Notes *· Abo relevant is the judgment of A. Loizou, J„ in Cyprian Srowav Agennr·. v. Republic

(1981)3 CL.R. 271. 273 Pikis J. Republic v. Louca and Others

(1984)1890, p. 130, where the Court of Appeal refused leave to withdraw, unless satisfied of the reasons behind appellant's desire towithdraw theappeal. Inanother case,Leesv.MotorInsurers' Bureau [1953] 1 W.L.R. 620, Singleton, L.J., commented that itseemed unusual for a successful party ina casewherejudgment 5 had been reported to receive the full amount of the claim, whileagreeingto the dismissal of the appeal. In the samecase, Denning, L.J., as he then was, observed that an appeal could not be allowed by consent for that would be reversing thejudgment at first instance without.hearing the appeal. 10 The word "may", in the context of Ord. 35 r. 29

(3), invests the Court with discretion in the matter of withdrawal. This isconsistent with the etymological meaning of the word "may", as noted in the case of Lindsay ParkinsonLtd. v. Triplan Ltd. [1973] 2 AH E.R. 273, 285. The Court was concerned with 15 the interpretation of the word "may" in s.447of the Companies Act, 1948,regarding security for costs by an insolvent company. The word "may" was construed as conferring unfettered discretion upon the Court toresolve the matter in the way deemed appropriate. There is no burden one way or the other, as 20 Lord Denning, M.R. put it. Mr. Antoniades suggested the discretion of the Court, under Ord. 35r. 29

(3),is limited to making an appropriate order as to costs. The wording of the Rule, as explained, rules out the limitation suggested by counsel for the Republic. Mr. Anto- 25 niades also suggested, it is relevant to heed the circumstances under which a recourse may be withdrawn in Greece. A party mayresign from his causeat any time prior to or at the hearing of the recourse, but not subsequent thereto (see, Conclusions from the Jurisprudenceof the Greek Councilof State 1929-59, 30 p. 275). Considering that an appeal is by way of rehearing, he argued that the hearing of the recourse may be treated as incomplete because addresses on appeal were not completed. Three remains, as earlier indicated, to hear the reply of counsel for the Republic and, the interested parties. To begin with, 35 the case was exhaustively argued before the trial Court, as counsel informed us and, in that sense, the hearing of the case was completed. An appeal, as defined in Cyprus, is unknown in Greece. Moreover, analogies with the exceptional judicial measure of cassation, cannot be carried too far and may be 40 274 3 C.L.R. 5 10 15 20 25 30 35 40 Republic v. Louca and Others Pikis J. misleading (αναίρεση—le recours en cassation). Cassation is not an appeal but an extraordinaiy measure of review by a higher Court, of the legality of the decision of a Court of first instance. It is confined to legal grounds, limited to the scrutiny of the competence and composition of the Court, breach of substantive procedural rules and erroneous interpretation of laws (see, Conclusionsfrom the Jurisprudenceof GreekCouncil of State 1929-59, 283; Dagtoglou—General Administrative Law, 1982, Vol.

(2),p.239 et seq.). Cassation is constitutionally regulated in Greece by the provisions of Article 95

(1)of the 1975 Constitution. It found its way in the Greek Constitution since 1927. Interpretationof a plain legal provision, like Order 35 r. 29

(3), contrary to the meaning and tenor of its provisions, is totally unwarranted. Our duty is to gi\e effect to the law as laid down in our legislation. Moreover, it would be danger­ ous to subject the interpretation of a provision of the law. fashioned to the exercise of appellate jurisdiction by theCourt of Appeal in England, to a concept such as cassation, unknown to English law. Appellate jurisdiction, in the domain of levisional jurisdiction, is, under our law, exercisable in much the same way as appellate jurisdiction is exercised and is regulated by the same rules of procedure, namely, Order 35. Like an appeal from a decision of a civil Court,it is by way of rehearing (sec, s.25

(3)—Law 14/60, regarding the scope of appellate jurisdiction in civil and criminal appeals). For the reasons indicated hereinabove, I am in no doubt the Court has a discre­ tion whether to sanction the withdrawal of an appeal. The Court may refuse leave or may impose such terms as it deems appropriate. Finally, we must decide whether to allow withdrawal of the appeals. Application for leave to withdraw, was madeafter thecompletion of thearguments raised in suppoit of the appeal of the Republic and the interested parties and the answers thereto by counsel for Yiannakis Louca and Antonios Anastassioti and, after heaiing arguments in support of the crossappeal of Louca. The submission of the parties followed closely the arguments raised before the trial Court. There remains to heaT counsel for the Republic and the interested parties in reply. On the adjourned hearing, counsel for the Republic informed us the case was settled out of Court and sought leave to with­ draw the appeal. The terms of settlement were not disclosed. 1 can infer the appeal was settled by the payment of a sum 275 Pikis J. Republic τ. Louca and Others

(1984)of money to Yiannakis Louca and Antonios Anastassiou. Counsel for Louca likewise applied for leave to withdraw the appeal. Inface of submissions that theleave of the Court was required to withdraw theappeals, Louca andAnastassiou made a statement to the Court, to the effect that they withdrew the 5 recourses. The statements were made, so far as I gather, in the hope of obviating need for the leave o£>the Court for the withdrawal of the appeals. What they overlook, is that they cannot turn the clock back. Nor can they obliterate by a unilateral act thejudgment under appeal. If the litigants were 10 at liberty on appeal to extinguish by consent the effects of a judgment,grave consequences would befall the administration of justice, especially a judgment that has far reaching repercus­ sions, as thejudgment in the present case, on the composition of a constitutional organ, the Public Service Cornmission. If 15 parties were at liberty so to do, the judicial process would be madesubservient, toagreat extent,totheinterests oftheparties. Such a course is impermissible. No one can obliterate, by' agreement on appeal, a judgment of the Court. And in any event, leave is required to withdraw the appeal. The Court 20 has a discretion in the matter. Even wheie an unqualified procedural light is vested in a litigant, thereis inherentpower intheCourtto stopits exercise, where this would lead toan abuse of the process of theCourt. In the exercise of this power, the House of Lords in Castanho 25 v. Brown &Root (U.K.)Ltd.[1981] 1All E.R. 143, discharged notice of discontinuance of proceedings notwithstanding the unqualified right vested intheplaintiff bytheRules,atthatearly stage, to discontinue proceedings. The case serves to demon­ strate themagnitude of the power of a Courtto ensure theeffi- 30 cacy of the judicial process. Inexercising mydiscretion, Icannotoverlook theimplications of the decision which, in the case of Antonios Anastassiou, signify, except in name,the annulmentof the decision toterm­ inatehisservices. Itis evidenttomethatthelearnedtrialJudge 35 refrained from proceeding further, in anticipation of the judg­ ment on appeal. The matteT at issue resolved, as I construe thejudgment atfirstinstance,isoneofvital interest tothepublic —it affects the composition of an important institution of the State, the Public Service Commission. 40 276 3 C.L.R. 5 10 15 20 25 Republic v. Louca and Others Pikis J. From what Ihave heard oofar and, having anxiously reflected on the matte.·, I strongly incline to the view that the decision under appeal, importing nullity of the decision to terrninate the services of at least one of the two dismissed members of the Commission, iswellfounded but, for reasonsdifferent from those given by the learned trial Judge. The law, in virtue of which the act was taken, namely, sub-section 3 of section 4 of the Public Service Law, is, to my mind, unconstitutional. The doct ine of necessity authorises departure from the provisions of the Constitution only to the extent warranted by the necessity. Any actionbeyond that limit, isunjustified. Thisemerges cleaiy from the leading decision on the application of the doctrine of necessity in the Attorney-General of the Republic v. Mustafa Ibrahim, 1964 CL.R. 195 (see, also, the recent decision of the Full Bench of the Supreme Court, in Aloupas v. National Bank of Greece

(1983)I CL.R. 55). I cannot ignore the repexussions from Letting aside a decision under appeal onthe legality of thecomposition of the Public Service Commission, nor the implications of s.4 sub-section 3 of Law 33/67 on security of members of the Public So-.vice Commhrion, most essential for the discharge of their coiutitutionr.l functions. The exercii-e of my discretion, I repeat, cannot «.olely depend on the view that Louca and Anastasriou take of their rights. But 1 do not ove look that my approach to the matte.'can caurc no detriment to their interests. On the other hand, if the Republic did pay, by way of settlement, a sum of moneytotheapplicants, presumably representing lost salaries, such action constitutes implied acknowledgment of the invalidity of the termination of services of Louca and 30 Anastassiou. If not, why pay any sum of money to them'? In such ciicumstances, Ifail to see why the matter was not pursued to the end to obtain a definitive statement of the law from the highest judicial authority,the Full Bench of the Supreme Court. 35 Foi all the above reasons, [refuse withdiawal of the appeals. Court: .In the result, appeals and cross-appeals are dismissed and recourses are struck out as withdrawn, without any order as to costs. Appeals and cross-appeals dismissed. No order as to costs. 277