(1984)1984 July 14 [PIKIS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION KYRIACOS KIKAS AND OTHERS, Applicants, v. 1.THECYPRUSBROADCASTING CORPORATION, 2.THEADMINISTRATIVE BOARDOFTHECYPRUS BROADCASTING CORPORATION, Respondents. (Cases Nos. 403/83, 457/83, 466/83). Administrative Law—Annulment of administrative act complained of in oneproceeding—Causes the abatement oj the subject matter oj everyotherproceeding/or Judicial review of the same act-— Prerequisites jor claiming damages underArticle 146.6 oj the Constitution. 5 The sole issue for consideration in this recourse was whether theannulment ofan administrative act, inoneproceeding,wipes out the subject matter of an extant recoursedirected against the validity of the same administrative act. Held,that theannulment oftheadministrativeactcomplained 10 of in oneproceeding, causesthe abatement of thesubject matter of every other proceeding for judicial review of the same act. Per curiam: Bearing in mind the content of Article 146.6 of the Constitution challenge of the act before anadministrative Court by a party claiming damages thereunder, is essential for the 15 validation of his suit; although the act need not have been annulled .at his instance. Applications dismissed. Cases referred to: Malliotis and Others v. Municipality oj Nicosia
(1965)3 C.L.R. 20 75 at p. 91; 852 3 C.L.R. Kitas and Others v. Republic Christodoulides v. Republic
(1978)3 C.L.R. 190; Attorney-General v. Markoullides
(1966)1 C.L.R.242atpp. 253, 254; Hapeshis andOthers v. Republic
(1979)3 C.L.R. 550; 5 Decisions oj theGreek Council oj StateNos.1627/63,200/70, 620/70 and 3467/
- Recourses. Recourses against the decision of the respondent to promote the interested parties to the post of Senior Programme Officer 10 in preference and instead of the applicants. L. Papaphilippou, for applicant in Case No. 403/
- P. Ioannides, for applicant in Case No. 457/
- L. N. Clerides with C. Clerides, for applicant in Case No. 466/
- 15 P. Polyviou,for respondents. Cur. adv.vult. PIKISJ.readthefollowingjudgment. Aquestionofexceptional legal importance must bedecided in order to determine the fate of these proceedings. It is this: 20 Doestheannulmentof an administrative act,inoneproceeding, wipe out the subject matter of an extant recourse directed against the validity of the same administrative act? It iscommon ground thedecisioncomplained ofineachone of these cases, was set aside in its entirety by a decision of the 25 Supreme Court, in the exercise of its revisional jurisdiction, in Case No. 417/83.* Neither the researches of counsel nor those of the Court brought to notice any Cyprus authority deciding directly the issueat hand. Onlyindirectly wasthematter touched upon in 30 some cases not aimed at furnishing an answer to a question similar to the one before us. Jurisprudence on administrative lawin Gieece, hassettled thematter longago. Theannulment ofanadministrative actinoneproceeding,ithasbeenrepeatedly held, extinguishes thelitigable causein every other proceeding 35 directed against the same act. A more apt picturing of what • Now reported in
(1984)3 C.L.R. 635. 853 Pikis J. Kikas and Others v. Republic
(1984)actually happens is this: With the annulment of the act, the subject matter of every other proceeding questioning the same act,eclipsesand isnolongernoticeablein law. In consequence, the litigant forfeits the interest necessary to pursue the recourse and ceases to have a legitimate interest to seek its review - See, 5 inter aha, the Decisions of the Greek Councilof State 1627/63, 200/70, 620/70, 3467/70, and Conclusionsfrom the Jurisprudence of theGreek Councilof State 1929-59p.275.Dagtoglou- Genera/ Administrative Law, 107; Stassinopoulos - Law of Administrative Acts 1971, p.
- As Prof.Tsatsos explains*, the annul- 10 ment of the act causes its disapperance in law and renders pending proceedings abortive, irrespective of the implementation of the Court order. The solution adopted in Greece wasevolved on analysisof the implications stemming from the judicial nullification of an 15 administrative act. Consideration of the elevant provisions of the law on the effect of judgments of the Greek Council of State pioclaiming them as universally binding, leads to the same conclusion (Law 3713/28 - s.50, sub-section 4 in particular). In virtue of para. 5of Article 146of the Constitution,judgments 20 of the Supreme Court in the exerciseof its revisionaljurisdiction, are likewise binding, operating erga omnes. They are binding on all Courts, organs and authorities of the Republic, who are under a duty, as well as everyone concerned to give effect to them. 25 Unless there is some rule of law dictating another course, the similarity between the pertinent provisions of Greek and Cyprus law (the Constitution in the case of Cyprus), on the effect of Court judgments in this area, and the applicability of similar principles of administrative law in the twojurisdictions, suggest 30 the adoption of a similar solution in Cyprus to that evolved in Greece, mentioned above. To my comprehension, there is no conceivable reason justifying the adoption of a different course in Cyprus. On the contrary, the sustainance of litigation following the obhteration of the act complained of, would be an 35 exercisein futility, while it is axiomatic in law that Courts do not operate in vain. The effects of annulment were debated by Triantafyllides, J., Application for Annulment, 3rd ed., paras 189-
- 854 3 C.L.R. Kikas and Others v. Republic Pikis J. as he then was, in ChristosMalliotis and Others v.Municipality of Nicosia
(1965)3C.L.R. 75,
- The learned Judge observed that the disappearance of the sub judice act, on account of physical or legal destruction, causes the disappearance of the 5 subject matter for all purposes. 10 15 20 25 30 Notwithstanding the disappearance of the act under consideration, Mr. Papaphilippou argued that the recourse has not lost its subject matter litigation may continue in view of the provisions of para. 6 of Article 146of the Constitution that has no parallel in Greek law. Para. 6defines the prerequisites for a civil remedy for damages for injuries suffered as a result of an invalid administrative act. In the submission of counsel, para. 6 postulates, as a prerequisite, annulment of the act at the instance of theparty puisuing a civil remedy; therefore, foimal annulment at his instance, is essential for the accrual of a right under para.
- A corollary of this proposition if accepted, would bethat an applicant retains a legitimate interest to pursue a recourse for purposes other than the nullification of the act compalined of, that is, for a secondary purpose. Dicta in Christodoulides v. The Republic
(1978)3 C.L.R. 190, lend some support to this view. However, the observations were obiter in that they were not made for the purpose of deciding th; issue in the case. The Court was concerned to decided whether belated releaseof a soldier from the ranks oftheNational Guard obliterated inlawthecauseunderreview,that is,initial refusal to release the applicant contiary to law. Annulment, on the other hand, it must be said, obliterates the decision ab inition and causesitsdisappearance in law. The decision inChristodoulides supra, does not decide otherwise. Obiter dicta in AttorneyGeneralv. Andreas Markoullides
(1966)1C.L.R. 242, 253,254, and Hapeshis and Others v. The Republic
(1979)3 C.L.R. 550, in relation to thejusticiability of a cause after annulment, must be treated with equal reservation. The case of Frangoulides v.Republic
(1982)1C.L.R. 460, may 35 be noticed in so far as it sheds some light on the prerequisites of an action under para. 6 of Article 146. Recovery of damages, it was held, is dependent upon (a) Annulment of the injurious administrative act by a Court of competent jurisdiction, and 855 Pikis J. Klkas and Others v. Republic
(1984)(b) failure on the part of the Administration to eradicate injury flowing therefrom. The usefulness of the decision liesin the fact that it doesnot tierecoveryof damages, under para. 6,to the annulment of the administrative act at the instance of the plaintiff. 5 Article 146.6 doesnot,onagrammaticalconstruction,postulate annulment of the act complained of at the instance of the claimantasaprerequisitefortherecoveryofdamages. Further, itdoesnot qualify themeaningof "legitimateinterest"inpara.2 10 ofthesamearticle,directlylinked totheinterestofthe applicant topursuetheextinguishmentofthe actinlaw. Para.6doesnot purpoit to confer an interest to pursue judicial review where none exists under para. 2. In my judgment, the annulment of the administrative act 15 complained of in one proceeding, causes the abatement of the subject matter of every other proceeding for judicial review of the same act. And this disposes of the question before me. However, I think itrightto put on record, bearing in mind the contextofpara.6,thatchallengeoftheactbefore an administra- 20 tive Court byapartyclaimingdamages thereunder, is essential for the validation of hissuit; although the act need not have been annulled at his instance. For the reasons indicated above, the recourses have been sapped of their subject matter and must, therefore, bedismissed 25 as abated. The recourses are dismissed. Let there be no order as to costs. Recourses dismissed with no orderas to costs. 30 856