clr/1986/1986_3_2543.pdf

(1986)letter was written by an officer of the respondents without proper authorization by the Board or the organs entrusted with authority to deal with applications of the kind in question. The respondents stated that they are not supporting the decision challenged by this recourse and maintained that such decision is not a decision in any sense of the word. 5 Held, annulling the sub judice decision: (I) The decision challenged had all the outward characteristics of an executory administrative act. The test of justiciability are the I0 outward implication of an act, not its intrinsic invalidity. intrinsic invalidity of an act due to failure to observe internal procedures in the decision making process does not render the decision non-reviewable. On the contrary judicial review is aimed, inter alia, to elicit the circums'ances 15 leading to a decision.

(2)Revocation of the sub judice decision or acknowlegment of its invalidity does not of itself put an end lo the proceedings. (Kikas and others v. The Republic

(1984)3 C.L.R. 852 adopted). 20

(3)The sub judice decision emanated from a wholly incompetent organ and has, therefore, to be annulled. Sub judice decision annulled. Costs against respondents. Cases referred to: HadjiAnastassiou 25 v. The Republic

(1982)3 C.L.R. 672; Paraskeva and Another v. The Municipal Limassol

(1984)3 C.L.R. 54; Antoniades and Others v. Municipal

(1985)3 C.L.R. 1695; Committee of Council of Paphos Kikas and Others v. The Republic

(1984)3 C.L.R. 852: Frangos and Others v. The Republic

(1982)3 C.L.R. 53; Booksellers Association v. The Republic

(1985)3 C.L.R.

1. 2544 30 3 C.L R. toannou v. C.T.O. RecourseRecourse against the dismissal of applicants' application for a certificate of suitab/lity for the development of their land into hotel apartments. 5 A. S. Angelides, for the applicants. A. /. Dikigoropoulos, for the respondents. Cur. adv. vuh. PIKIS J. read the following judgment. The applicants are the owners of a building site at Ayia Napa. They sub10 mitted an application to the respondents for a certificate of suitability for its development into hotel apartments. The application was made in the prescribed form in accordance with the provisions of the Hotels and Touristic Establishment Laws(i) and regulations made thereafter. It 15 was handed in on 20th March,
2. Four days later the respondents dismissed their application for the reason that it failed to meet the requirements of the regulations

(2). The rejection was communicated in a letter addressed to the applicants on behalf of the Director20 General, the chief-executive of the respondents. They were informed that the extent of their plot was below the minimum envisaged by the regulations as a prerequisite for the development of property into hotel apartments. The decision was challenged by the present proceedings for a 25 variety of reasons, including lack of due inquiry and excess and abuse of the powers vested in the respondents by law. Respondents opposed the application cla-ming the decision was a valid exercise of the powers of respondents. The case was mentioned to the Court for directions on 19th 30 September. 1986. On the joint application of the parties directions were given for the submission of written addresses w'thin the time limited in the order of the Court. Thereafter applicants sought to inspect the file of the case preliminary to prepar'ng their address. The file was not <D 1974-1985 <2> Section 12, Hotels lations) 1985. and Touristic Establishment (General Regu- 2545 Pikis J. loannou v. C.T.O.

(1986)made available to them, seemingly because it was disco­ vered that applicants* petition for a permit was never dealt with by the appropriate organs of the respondents. Appa­ rently initiative for the letter written on behalf of the Di­ rector-General was taken by an officer of the respondents 5 without proper authorization by the Board or the organs entrusted with authority to deal with applications for the approval of building sites fcr touristic purposes. The truth of the matter was disclosed to the applicants by a ietter of counsel for the respondents dated 20th October, 1986. It 10 was intimated to applicants that the sub judice decision was not a decision in the sense of Article 146 informing them that their application would be properly ccnsidered the soonest. On a written motion of the applicants the time for filing their address was extended. Respondents, on the 15 other hand, submitted no address in support of their oppos:tion reiterating before the Court they are not supporting the decision challenged in the proceedings maintaining it is not a decision in any sense of the word. Counsel for the applicants, on the other hand, invited the Court to annul 20 the decision, subject-matter of the proceedings, claiming a right to pursue the proceedings to the end as a proper safe­ guard for the exercise of the rights vested them under Ar­ ticle 146.6 to pursue an action for damages. He further invited the Court to award them costs, a suggestion op- 25 posed by counsel for the respondents. To begin, the decision challenged had ail the outward characterist'cts of an executory administrative act and as such was justiciable under Article 146.1 of the Constitu­ tion. Information about the decision emanated from the 30 chief executive organ of the Board presumed to be the mouthpiece of the respondents. In po : nt of fact the decision was owned by the respondents and espoused as a va'id ad­ : ministrative act n their opposition. Its invalidity came to the fore in the course of these proceedings as a result of 35 the exercise of the undoubted right of the applicants to in­ spect adnrnistrative records bearing on the sub judice de­ : cision. A series of decis ons(') of the Supreme Court estaf i> hadjianastassiou ν The Republic

(1982)3 C.L.R. 672 Paraskyva and Another v. Municipal Committee of Limassol

(1984)3 C.L.R. 54. 2546 3 C.L.R. Pikis J. loannou v. C.T.O. blishes that every decision emanating from a body or authority trusted with power or discretion to decide the matter is cognizable for purposes of judicial review. The test of justiciability are the outward implications of the act. not 5 its intrinsic validity. In Antoniades and Others v. Municipal Council of Paphos^) it was pointed out that only in two situations can a decision be wholly disregarded as stillborn: 10 (

1. a)where it arises from manifest or where usurpation (
2. b)it derives from an organ absolutely take the decision. of power. incompetent to Intrinsic invalidity of a decision because of failure to observe internal procedures in the decision making process 15 does not render the dec;sion non-reviewable. On the contrary judicial review is aimed, inter alia, to elicit the circumstances leading to the decision and scrutiny of the legality nf the action. Revocation of the decision or acknowledgment of its invalidity does not of itself put an end to the proceed:ngs. The applicant has a right to seek a declaration of annulment. a prerequisite for the exercise of the right to raise an action for damages under Article 146.6 of the Constitution. The matter was d;scussed and decided in Kikas and 25 Others v. The Republic^). There is no need to repeat the reasoning associated with the decision in the above caseSave to mention that in my judgment it reflects a correct principle of the law. 20 In the light of the acknowledgment of the respondents 30 that the decision originated from a wholly incompetent organ of the respondents the sub iudice decision must be annulled .and it is so ordered. Costs 35 Unike civil proceedings costs do not, as a rule, follow the outcome of the case. Costs are at large the Court :i>

(1985)3 C.L.R.

1. «> 11984) 3 'C^L:R.
2. .2547 Pikis J. loannou v. C.T.O.

(1986)having an unfettered discretion in the matter. The princi­ ples relevant to the exercise of the discretionary powers of the Court in this area were d:scussed in a number of cases (See, inter alia, Frangos and Others v. The Republic^) Booksellers Association v. The Republic^). I feel I can only exercise my discretion in one way, that is, by ordering the respondents to pay the costs of the applicants. 5 In the result the sub judice decis'on is annulled. Res­ pondents are adjudged to pay the costs. Sub judice decision annulled. Respondent to pay costs.

(1)(Ϊ982) 3 C.L.R. 53. (2>

(1985)3 C.L.R. 1171. 2548 10