0984) 1984 April 30 [LORIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION PANAYIOTiS PANTELI LOIZOU, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COMMANDER OF POLICE AND/OR THE MINISTER OF INTERIOR AND DEFENCE, Respondents, (Case No. 124/83). Administrative Law—Annulment of decision terminating an acting appointment on the ground that applicant wasnot given a chance to be heard—Reconsideration of the matter after giving applicant the chance to make both oral and written representations—Respondentsperfectly entitled to re-examine caseandarriveat anew 5 decision whichshould not necessarily be adecision contrary to the first one—New decisionnot inconflict withtheannullingjudgment of the Supreme Court andreasonably opento them on thematerial before them. Abuse or excess of power—Burden of proof—Lies with applicants. 10 Administrative Law—Administrative acts or decision—Reasoning— Due reasoning—May befound either in the decision itself or in the official records related thereto. The applicant, a Police Sergeant, received on 15.9.1972 an acting appointment to the rank of Police Inspector. The said 15 acting appointment was terminated by virtue of a decision of the respondents dated 7.8.
- Upon a recourse by the applicant the decision terminating his acting appointment was annulled by the Supreme Court on 17.9.1982 on the ground that he was not given a chance to be heard before such decision was taken. 20 Following the judgment of the Supreme Court the Chief of Police re-examined the case of the applicant after giving him a 278 3 C.L.R. Loizou v. Republic chance to make both oral and written representations on the matter. By means of a new decision taken on 12.1.1983 the ChiefofPoliceterminated theactingappointment ofthe applicant with retrospective effect as from 7.8.
- Hence this recourse. 5 Counsel for the applicant mainly contended. (a) That the decision of the respondents dated 12.1.83is in direct conflict with the judgment of this Court dated 17.9.1982; 10 (b) That the subjudice decision in the present recourse was in excess and/or abuse of power. (c) That the sub judice decision was not duly reasoned. 15 20 25 30 35 Held,
(1)that the annulment of the first decision does not mean that the applicant has acquired vested rights to hold the acting appointment of Police Inspector; that the respondents wereperfectly entitled to re-examine his case and arrive at a new decision; and their new decision should not necessarily be a decision contrary to their first one; that inview of the fact that the respondents have given this time, complying with the judgment of this Court, the opportunity to the applicant to be heard and taking intoconsideration that the applicant was heard by the respondents both inwriting andvivavoce the subjudice decision of the respondents, which is not in conflict with thejudgment of this Court of 17.9.1982 was reasonably open to them having regard to the facts and circumstances of this case.
(2)That the burden ofproof that thereexistsexcessor abuseof power lay with the applicant and he has failed in the present case to discharge such burden.
(3)That the reasoning behind an administrative decision may be found either in the decision itself or in the official records related thereto; that having examined the sub judice decision in the light of all other documents contained inthefile this Court is satisfied that the sub judice decision is duly reasoned. Application dismissed. Cases referred to: Koukoullis v. Republic, 3 R.S.C.C. 134; Kousoulides v. Republic
(1967)3 C.L.R. 438; Gearghiades v. Republic
(1967)3 C.L.R. 653 at p. 666; 279 Loizou v. Republic
(1984)HadjiSawa r. Republic
(1972)3 C.L.R. 174at p. 225; Petndes v. Republic
(1983)3 C.L.R.
- Recourse. Recourse against the decision of the respondent to terminate applicant's acting appointment to the rank of Police Inspector. 5 C. Anastassiades for E. Efstathiou, for the applicant. A. Vladimirou, for the respondent. Cur. adv. vult. LorisJ. read thefollowingjudgment. Theapplicant by means of the piesent recourse impugns the decision of the respondents 10 communicated to him by letter dated 12.1.1983, whereby his acting appointment to the rank of Police Inspector was terminated with retrospective effect as from 7.8.
- The relevant facts of this case aTe briefly as follows: The applicant, a Police Sergeant, received on 15.9.1972, an 15 acting appointment to the rank of Police Inspector. The said acting appointment of the applicant was terminated by virtue of a decision of the respondents dated 7.8.
- The aforesaid decision of the respondents was attacked by the applicant in Case No. 152/75 (vide Loizou v. The Republic, 20
(1982)3 C.L.R. 988). By virtue of thejudgment of this Court given on 17.9.1982in the casejust now mentioned the said decision of the respondents was annulled, for the reasons stated in the judgment to which reference will be made later on in the present judgment. On 23.10.1982 a letter (exhibit 1 attached to this recourse) was addressed by counsel for applicant to the Chief of Police requesting in effect the reappointment of the applicant to the acting rank of Police Inspector. On 1.11.1982 the Chief of Police replied to the counsel for 30 applicant by a registered letter (exhibit 2 attached to the recourse) expressing his intention to reexamining the case of theapplicant in thelightofthejudgment ofthe Court, inviting at the same time the applicant to submit to him his representations either oral or in writing within 15 days from the date 35 of the said registered letter. On 10.11.1982 the applicant 280 25 3 C.L.R. Loizou ν. Republic Loris J. addressed to the Chief of Police a letter on this matter which is exhibit 3 attached to the present recourse. On 11.11.1982 the applicant visited the Chief of Police at latter's office andma.detohimoral representations onthematter, 5 supplementing thus his letter of 10.11.1982 (vide para. 2 of the 2nd page of exhibit 4 dated 12.1.1983 attached to the present recourse). Thus after hearing the applicant on the matter, the Chief of Police gave his new decision (vide exhibit 4 attached to the 10 recourse), which was approved by the Minister of Interior, terminating the acting appointment of the applicant with retro spective effect as from 7.8.
- The applicant attacks by means of the present recourse the said new decision of 12.1.1983; the grounds of law on which 15 he relies although set out in 9paragraphs in the recourse, to my comprehension boil down to 3 main grounds as follows:
- The decision of the respondents dated 12.1.1983 is in direct conflict with the judgment of this Court dated 17.9.
- 20
- The sub judice decision in the present recourse is in excess and/or abuse of power.
- The decision is not duly reasoned. Therespondents in their opposition raise a prelimiiuviy object ion to the effect that the recourse "does not fulfil the prere25 quisites of Article 146 of our Constitution"; nothing more was added and I have noted that it was neither mentioned in the written address of learned counsel appearing for therespondents nor argued at the clarification stage; therefore I consider the prehminary objection raised in the opposition which was neither 30 explained nor pursued any further as abandoned. The respondents in their opposition allege further that the sub judice decision is "lawful, duly reasoned and in any way it was not reached at in excess o. abuse of power nor does it constitute disrespect or contempt of Court". 35 Let us now consider the complaints of the applicant. First of all the judgment in Loizou v. The Republic (supra) must be 281 Loris J. Loizou v. Republic
(1984)borne in mind. The substance of the whole judgment it to be found at p. 1001 (lines 13-22);it reads as follows: "From the above it is abundantly clear that as the true natureandpurposeofthesubjudicedecisionwastoimpose a sanction on the applicant the latter ought to have been 5 given the chance to be heard before such decision was taken. Thiswasnever doneand therefore one ofthemost important rules of natural justice wasviolated notably therulethatboth sidesmust beheard—audiaturetalteram partem—. I do not intend to deal with the remaining complaints of the applicant; they are ancillary to his main complaint which I have already sustained". The judgment of this Court of 17.9.1982 is crystal clear: Thesubjudicedecision wasannulled becausethe applicant was 15 notgiventhechanceto beheardbeforesuchdecisionwastaken; and this Court sitting as an administrative Court was perfectly entitled not to examine the remaining complaints in that case having sustained applicant's main complaint. As a result the then subjudice decision was annulled. This 20 does not mean that the applicant has acquired vested rights, as alleged in the present recourse, to hold the acting appointmentofPoliceInspector;therespondentswereperfectly entitled to reexamine his case and arrive at a new decision; and their new decision should not necessarily be a decision contrary to 25 their first one. Annulment of the decision in case No. 152/75 could not, and in fact did not direct the reappointment of the applicant to the acting rank of Police Inspector but simply directed that the matter had to be reconsidered; therefore the subsequent decision amounts to such reconsideration and con- 30 stitutes a sufficient compliance in the sense of Article 146.5 of the Constitution (vide Papasavva v. The Republic
(1979)3 C.L.R. 563). Inview of the fact that the respondentshavegiventhistime, complying with the judgment of this Court, the opportunity 35 to the applicant to be heard and taking into consideration that the applicant was heard by the respondents both in writing on 10.11.1982 (exhibit 3) and viva voce on 11.11.1982, I hold the 282 10 3 C.L.R. Loizou v. Republic Loris J . view that the sub judice decision of the respondents, which is not in conflict with the judgment of this Court of 17.9.1982, was reasonably open to them having regard to the facts and circumstances of this case as they emerge from the several docu5 ments attached to the recourse, and the opposition thereto, and in particular Appendix Έ* attached to the opposition, which throws ample light to the specific issue of the abolition of the institution of secondment of a Police Office to the office of the Chief of Staff of the National Guard, an abolition which 10 dates back to the 7.8.1975. In this respect "once the decision was annulled and the res pondents had to reconsider the case it was perfectly legitimate for them to take into account all facts which existed at the time of the original decision irrespective of whether the decision 15 annulled was in effect based on such facts or not, and they were not bound to base their new decision exclusively on the facts and circumstances on which the original decision was based" (vide Kyprianides v. The Republic,
(1968)3 C.L.R. 653 at p. 660 and on appeal
(1970)3 C.L.R. 176). 20 In spite of the fact that the applicant attributes generally, abuse or excess of power to the respondents, I could not trace any particular instance of specific abuse or excess of power unless the applicant refers to his allegations that the sub judice decision is in direct conflict with the judgment of this Court 25 dated 17.9.82 in which case such allegations have been dealt with and answered above. I shall confine myself in repeating here what has been said time and again, that theburdenof proof that thereexistsexcess or abuse of power lay with the applicant (vide Koukoullis v. The Republic^ 3 R.S.C.C. 134, Kousoulidesv. The 30 Republic,
(1967)3C.L.R. 438); andtheapplicant in the present case has failed to discharge such burden. In connectionwith reasoning it is well settled that administra tive decisions have to be duly reasoned; what is due reasoning is a question of degree dependantuponthenatureof the decision 35 concerned {Athos Georghiades and Others v. TheRepublic
(1967)3 C.L.R. 653 at p. 666). Reasoning behind an administrative decision may be found either inthedecision itself orin the official recordsrelatedthereto 283 Loris J. Loizou v. Republic
(1984)(Georgluos HadjiSavva v. TheRepublic,
(1972)3 C.L.R. 174at p. 225, Petridesv. TheRepublic,
(1983)3 C.L.R. 216). Havingexamined the subjudicedecision set out in exhibit 4 attached to the present recourse in the light of all other documents contained in this file, I am satisfied that the sub judice decision is duly reasoned. For all the above reasons the present recourse fails and it is accordinglydismissed; Imustaddthat itiswithgreatreluctance that I have decided to make no order as to costs. Recourse dismissedwith no order as tocosts. 284