3 C.L.R. 1987October30 IPIK1S J ] IN T H E MATTER OF ARTICLE 146 OF T H E CONSTITUTION WESTPARK L T D , Applicants, ν T H E REPUBLIC OF CYPRUS, T H R O U G H T H E DIRECTOR O F L A N D S A N D SURVEYS, Respondents (Case No 430/87). Acts or decisions in the sense of Art 146 1 of the Constitution — Immovable 5 property, transferof — Assessing its valuein virtue of thepower pursuant to s 3(
- iv)of theSchedule tos 3 of theDepartment ofLandsandSurveys (Fees andCharges)Law, Cap 219, asamended byLaws81/70, 61/73,31/76.66/ 79and 15/80—Outside ambit ofArt 1461 Actsordecisionsmthesenseol Art 146 1 oftheConstitution — Testapplicable for determining thejusticiability of an actthereunder — Itissubstantive 10 Precedent, doctnne of — Decisions of Courts of co-ordinatejunsdiction — Not binding — Thisrule covers also decisions given by the samejudge at first instance Constitutionality of Statutes — In the absence of a specific motion of unconstitutionality, the Court mustheedandgive effecttothelaw applicable *o the case 15 20 The respondent Director rejectedthe pnce of sale of immovable property in question declaredat £1,300,000 by the parties to the sale and proceeded to assessit at£2,000,000,reflecting the open marketvalue ofthe land atthe matenal time,and,asaresult, thetransfer feeswere calculatedon thebasisof £2,000,000 Hence the present recourse The aforesaid decisionwas taken in virtue of s 3(
- iv)oftheSchedule tos 3ofCap 219,asamendedbyLaws81/70,61/73, 31/76,66/79 and 15/80 The applicant filed an appeal to the District Court (Second proviso to the aforesaid sectionJ(iv)) He, also,tiledthis recourse 1473
(1987)Westpark Ltd.v. Republic Held, dismissing the recourse:
(1)Every enactment of the legislature is deemed to come withintheframework ofthe Constitution unlessthe Court declaresotherwise onaspecific motion ofunconstitutionality. Inthiscaseno challenge to the constitutionality of the relevant provisions of the Schedule was mounted; consequently I must heed the law and decline to assume jurisdiction toreviewthevalidityofthesubjudiceact. 5
(2)Assuming thatthereisnoconstrainttoexaminingthenature ofthesub judice decision, (a) The rule of precedent does ..ot bind this Court to follow decisionsof Courts of coordinate jurisdiction and that includes decisions given by the sameJudgeatfirstinstance;providedtheCourtissatisfied theywerewrongly decided. 10 (b)Havingreflected afresh uponthedecision inleropoulosv. DistrictLand OfficerL'ssol
(1987)3 C.L.R.830,the Courtwasnot persuaded thatitwas wrongly decided. 15 (c) The test followed inCyprus for the classification of actswitha viewto determining their justiciability under Art. 146.1 of the Constitution, is substantive. (d)InthiscasetheinterestofthepublicinthedecisionoftheDirectorcannot be identified exceptaslimited.Thedecision haslimitedrepercussionsonthe widerpublic. Itaffects primarilythefinancial obligations ofthepurchaser for theacquisition ofthe land. 20 Recoursedismissed. No orderastocosts. Casesreferredto: 25 leropoulos v.DistrictOfficerL'ssol
(1987)3 C.L.R.830; The Board for the Registration of Architects and Civil Engineers v. Kyriakides
(1966)3 C.L.R. 640; Improvement Board ofEylendja v.Constantinou
(1967)1C.L.R.167; Frangosand Othersv.Republic
(1982)3 C.L.R.53; Antoniou and Othersv.Republic
(1984)3 CX.R.623; Mahlouzaridesv.Republic
(1985)3 C.L.R.2342; HellenicBank v.Republic
(1986)3 C.L.R. 381; Republic v.M.D.M. Estate
(1982)3C.L.R.642; 1474 30 3 C.L.H. Westpark Ltd.v. Republic Kalisperasv. MinisterofInterior
(1982)3C.L.R.509; Ayoub v. Republic
(1985)3C.L.R.70. Recourse. Recourse against the decision of the respondent whereby the 5 sale price declared by the parties to the sale of a plot of land at Paphos wasrejected bythe respondent whoproceeded to assess itat£2,000,000.A. Dikigoropoulos, forthe applicant. A. Vladimirou, forthe respondents. 10 15 20 25 30 Cur.adv. vult. PIKISJ. read the following judgment. AsinIeropoullos v. The DistrictLands OfficerLimassol*I must decide on the justiciability of a decision of the Lands Department under the Lands and Surveys (Fees and Charges) Law, Cap. 219**, in which the Director in exercise of the power given him by s.-3(IV) of the Schedule tos.3,rejected thesalepricedeclared bythepartiesto the sale (£1,300,000.-) of a plot of land at Paphos as unrepresentative ofthemarketvalueofthelandandproceededto assess it at £2,000,000.- reflecting the value of the land in the open market at the material time. Thereupon the purchasers, applicantsintheseproceedings,wererequiredtopaytransfer fees corresponding to the market value of the land, a decision they seemingly contested notonlybefore thisCourtinpursuantto the jurisdiction vested in the Court under Art. 146.1, butalso before the District Court of Paphos, presumably invoking the power specifically conferred on the DistrictCourt by the second proviso tos.3(IV)oftheaforementioned Schedule.InIeropoullos(supra) I decided, on a review of the nature of the power vested in the Director under the pertinent provisions of the law, that the act is outside the domain of public law and as such inamenable to the jurisdiction of the DistrictCourt. I did expressreservations in that case whether it was at all possible to take cognizance of the sub judice decision in the absence of a submission that the relevant provisionsof s, 3 of the Schedule, whereby jurisdiction to review '
(1987)3C.L.R-830. **AmendedbyLaws81/70,61/73.31/76, 66/79and15/80, 1475 Pikis j . Westpark Ltd. v. Republic
(1987)the decision of the Director is specifically conferred upon the DistrictCourt, are unconstitutional.Uponfurther reflection onthe implications of the absence of such a submission, Ibelieve the dismissal of this recourse is a foregone conclusion. Every enactmentof thelegislature isdeemedtocomewithinthe 5 framework of theConstitution unless theCourtdeclares otherwise on a specific motion of unconstitutionality*. Jurisdictional enactments, thatis, statutesvesting competence inaCourtof law to adjudicate upon a matter,are noexception. Thoseenactments toomustbe heeded andbe given effect toasavalidexercise of the 10 legislative power in the absence of a specific challenge to their constitutionality and a judicial pronouncement declaring them unconstitutional.Inthiscasenochallengetotheconstitutionalityof the relevant provisions of the Schedule was mounted; consequently I must heed the law and decline to assume 15 jurisdiction toreview thevalidity of thesub judice act. Supposing that the aforementioned fetter should not constrain me from examining the nature of the sub judice decision, the case of leropoulios decides thatthe legislative appreciation of thenature of the act is sound and for that reason jurisdiction was rightly 20 assigned to the District Court to review the validity of the act. Learned counsel asked me to revise my appreciation of the implicationsof theact expressed inthecase ofleropoulios (supra) and invited me todepart from itas founded onanerroneousview of thenatureof theact.Therule of precedent does notbind meto 25 follow decisions of Courts of coordinate jurisdiction and that includesdecisions givenbymyself atfirstinstance**;provided the Court issatified they were wrongly decide. I reflected uponthedecision inleropoulios afresh, acoursethat left me wholly unpersuaded that that case was wrongly decided. 30 The decision of the Director under s. 3(iv) of the Schedule is interwoven with a fact finding process designed toelicit the value of land. There is no elementof policy inherentinthedecision nor isdiscretionvested intheLandsDepartmenttopromoteany wider policy objective. Dependingonthefactual inquiry of the Director, 35 fees are levied and collected that need not necessarily be higher than those that the declaration of the parties to the sale would * TheBoardfor the Registration of Architectsand CivilEngineersν Chr.Kynakides
(1966)3 CLR 640; Improvement Boardof Eytandja v.Constantmou
(1967)1C.L.R. 167. '*See, interaha, Frangosand Othersν Republic
(1982)3CL.R.53 1476