(1987)1987 June 22 [A LOIZOU LORIS STYL1AN1DES JJ ] IMPROVEMENT BOARD OF STROVOLOS, Appellant, ν 1 ANDREAS SOFOCL1DES, 2 SYLVIA AGAPIOU, Respondents (Criminal Appeal No 4859) Streets and Buildings— TheStreets and Buildings RegulationLaw Cap 96 — Sec/ion 10
(1)20
(1)(a)and3(a)— Tenant usinga buildingwithoutcertificate of finalapproval — Pnnciplesgoverningthe exerciseof thejudicialdescrebon inissuingademolition order— Λis only incasesof minor technicalitiesand tnvtal xoolatioBS that the oon making of suchan ordermay befustihed 5 The respondent, who was a tenant of certain premises at Strovolos was convicted upon herown plea for usmg such premises withoutacertificate (or approval from theappropriate authonty,contrary toSections 10
(1),20{l)(a) and3(a)of theaforesaid law ThetnalJudge did notmake ademolition orderon thefollowinggrounds, namely thattherespondentwas atenant, thatitwould be difficult for herto ccenpiywithanorderasshewas nottheownerandthat,ifsuchorderisissued, she would suffer disproportionate hardships 10 Hencemisappeal against theaforesaid refusal toissueademolitionorder Held,allowing theappeal
(1)ThisCourtcannotsubscnbe tothe approach 1 5 ofthe tnalJudge En thefirstplace,therehadbeen ademolitionorder against the owner of the premises, which makes the case stronger than the case of Municipalityof Lamaca ν Madella
(1980)2 C LR 177 and in the second place, the tenor of the authonties is mat the judicial discretion should be exercised in amanner,whichwill notfrustrate thevery purpose of the law It 2 0 isonlyinrespect of minortechnicalitiesandtnvialviolations of thelaw thatthe non making of ademolition orderis justified Appealallowed £25 costsmfavour of appellants , 112 25 2 C.L.R. lmpr.BoardStrovolosv. Sofoclldes Casesreferredto Municipalityof Lamaca ν Madelia
(1980)2 C L R 177 Golden Seasside Estate Co Ltd ν The Municipal Corporation of Famagusta
(1973)2C LR 58, 5 WineProductsBoardsν Toutoula
(1982)2C LR 112 Appeal against sentence. Appeal against sentence by the Improvement Board of Strovolos against thesentencepassed onSylviaAgapiou who was convicted on the 27th February, 1987 at the District Court of 10 Nicosia (CnminalCase No 7528/86) on onecountof the offence of using a building without a certificate of approval contrary to sections 10
(1), 20(l)(
- a)and 3(
- a)of the Streets and Buildings Regulation Law, Cap 96 and was sentenced by'Papadopoulou (Mrs) Ag DJ to pay £5 -fine, but without any demolition order 15 being made Ρ Lysandrou, for the appellant Ph Vahantis,for the respondents 20 25 30 35 A LOIZOU J, gave the following judgment of the Court The appellant, the Improvement Board of Strovolos, as the appropnateAuthonty undertheStreets and Buildings Regulation Law, Cap 96, as amended, instituted cnminal proceedings against the owner and the tenant - occupier of premises in Strovolos Avenue with four counts. The first one were for making or suffenng alterations to a building without apermitrespectively, thethirdcountfor altenng theapproved use of thesame building Thefourth andfifth counts for using or suffenng thebuilding tobe used without a certificate of approval from the appropnate Authonty. The part of the building in question in respect of which the aforesaid offences were claimed tohave been committedwas whatwas intendedand authonsed by thebuilding permit issued tobe a covered parking space andwhich by the building of walls et cetera was converted into a shop by the owner and letto the tenantthe respondentin this appeal by a contractof lease dated the 8th January 1982, to be used andindeed used as a ballet school The owner who may be referred to as ex accused 1, pleaded guilty to counts 1, 3 and 4, namely to making alterations to a 113 A.Loizou J. Impr,BoardStrovolos v.Sofoclides
(1987)building, altenngtheapproved use of thesaid building and use of itwithoutacertificate of approval from theappropnateAuthonty He was sentenced accordingly and inaddition he was ordered to demolish the part of thebuilding in respect of which the offences in question had been committed ο The respondentwas subsequently tnedandfound guilty onher own plea tocountfour, namely for using the building inquestion without a certificate of approval from the appropnate Authonty, contrary toSection 10
(1),20(l)(a)and
(3)(a) of the Law The sole issue uponwhich emphasis was laid by hercounsel in 10 hisplea inmitigation before thelearned tnalJudge was whethera demolition order should be or not made in addition to any other sentence ThelearnedtrialJudge,having referred tothelineof authonties that dealwith thequestion of theexercise ofthejudicial discretion 15 in such mattersorundersimilar legislation, towhich we shall refer shortly,gave therelevant facts of thecase,andafter distinguishing thecase oftheMunicipality ofLamaca ν MadeUa
(1980)2C L R 177, found thatshe was justified innotexercising herdiscretionto make a demolitionorder 20 As against the partof the decision the present appeal was filed by thesaid ImprovementBoard with thesanction, - as itoughtto have been obtained, -of the Attorney-General of the Republic, under s 137(b) of theCnminalProcedureLaw Cap 155 In effect, the grounds given by the learned tnal Judge in 25 justification of her notmaking the demolition order were thatthe respondentwas atenant,thatitwould bedifficult forhertocomply because she was not the owner, and there might be in the circumstances of the case disproportionate difficulties and hardships which she would suffer if a demolitionorderwas made 30 against her We do not subscnbe to this approach In the first place, there hadbeen madeademolitionorderagainst theownerwhich makes the case even stronger than the MadeUa case (supra) where no demolition order had been made against the actual culpnt of the 35 offence; in the second place the tenor of the authonties which were summed up in Golden Seaside Estate Co Ltd, ν The Municipal Corporation of Famagusta,
(1973)2 CLR 58 and reiterated in Wine ProductsBoard ν Demetra Toutoula
(1982)2 114 2 C.L.R. Impr.BoardStrovolosv.Sofoclldes A.Lolzoa J. C.L.R. 112 and then the Madella Case (supra), is that the Court's discretion should be guided by the principle that such discretionshouldbeexercisedinamannerwhichwillnot frustrate theverypurpose forwhichthelawexistsandforwhichthe power to make such orders is contained in the laws so that under no circumstances the would-be offender or an offender should feel thathe can orcancontinuetoenjoy thespoilsofhisillegality,and that itisonly inrespect of cases of minor technicalities and trivial violations of the law that the non-making of a demolition order may be justified. We fully indorse these principles and abide oy them. Foralltheabovereasons,theappealisallowedandtheorderof demolitionismadeagainsttherespondentthatshedoes demolish partoftheunauthorisedpremiseswithintwomonthsfrom to-day, and that a demolition order be made against part of the premises unlawfully constructed and referred toincount 4. Respondent topay£25 costsofthisappeal. Appeal allowed. 115