clr/1987/1987_3_1527.pdf

(1987)Governmentandsuch funds hadtobe utilised andtherewas notimetoresort to compulsory acquisition Counsel for therespondents argued thatthesubjudice actisinthedomain of pnvate law, that once a complete remedy existsunder the Civil Law, the present proceedings are futile, and that the recourse is not maintenable because there is nodecision of the Board recorded intheminutes 5 Held, annulling the sub judice decision

(1)The contention that the recourse is not maintenable because there did not exist any record of any decision of the Board in'he minutesisuntenable There is inthefirst placea positive act Irrespective of the fact thatthere is noformal decision recorded 10 in the minutes, all the facts of the case and the surrounding circumstances lead to only one inference that the act in question was the product of a decision of the respondent Board

(2)The answer to such argument is simple When a case falls within the ambit of Article 146, theexclusivejurisdiction of theSupreme Courtcannot 1 5 be ousted or limited in any way by the mere fact thatsome other remedy is availablebefore acivilCourt (Zavrosv TheDistrictOfficerofPaphos

(1986)3 CLR 44 followed) Sub judice decisionannulled Costsinfavourofapplicant 20 Casesreferred to Zavrosν TheDistrictOfficerof Paphos

(1986)3 C LR 44 Recourse. Recourse against the decision of the respondent to construct a road through the immovable property of the applicant at 25 Kalapanayiotis. A. Xenophontos, for theapplicant. K.Michaelides, for therespondent. Cur. adv. vult SAWIDES J. read the following judgment. Atthebeginning of 30 July, 1985, the Improvement Board of Kalapanayiotis, the respondentinthepresentrecourse,proceeded toandconstructed an agricultural public road. Forthe construction of such road the Board entered upon and used part of the applicant's property. There is no formal decision of the Board and nothingis recorded 35 in any minutes of the meetings of the Board, concerning the constructionof theroad.Asitemanatesfrom thefacts setoutinthe 1528 3C.L.R. Loucaldou v.Impr.Board K'yiotie S a w i d e s J. opposition and the written addressofcounsel forthe respondent, the road had to be constructed urgently as public funds were allocated bythe Government foritsconstruction which had to be utilizedand therewasnotimetoresorttocompulsory acquisition. 5 Infact tilltoday there has been no suggestion that the part of the property of the applicant affected by the road, has been compulsorily acquired. Asaresulttheapplicantfiled thepresent recoursewhereby she prays for:10 15 «Adeclaration of the Court that the act and/or decision of the Improvement BoardofKalapanayiotistoconstructa road through the immovable property of the applicant situated at the localityofMega LaoniatKalapanayiotis (Plots354/2 and 364/2 Sheet/Plan XXXVII 18, Block 1/23) and/or itsuse for the publicand/or anyotheruseisillegaland/or nulland void and ofno legaleffect whatsoever». Anumber oflegalgroundswereraised including,interalia,that there was excess and/or abuse of powers; that the respondent Board acted inviolation ofArticles23 and 28of the Constitution 20 and theLaw(Cap.243);thatthe respondent Boardacted undera misconception offacts and itsdecision isnot reasoned. The onlyobjection raised by counsel for the respondent isthat the actand/or decision complained of isin the domain of private law and cannot be made the subject-matter of a recourse under 25 Article 146ofthe Constitution. Itisabundantlyclearboth from theopposition andthe contents of the written address of counsel for the respondent that the respondent Boarddoesnotdisputethefactthattheentryuponthe property of the applicant was an unauthorized act not taken in 30 accordance withtheprovisionsoftheVillages(Administration and Improvement) Law,Cap.243and theCompulsory Acquisitionof Property Law, 1962 (LawNo. 15/1962). Counsel fortherespondent inhiswrittenaddresscontendsthat «some of the organs or officers of the Board, took it upon 35 themselves to trespass upon the applicant's property and construct an agricultural road serving the interests of the whole community». Such contention is, however, of no material relevance in view of hisadmission in the opposition that «at the beginning of July, 1985, the Improvement Board of 1529 S a w i d e s J. Loucaldouv.Impr.Board K'yiotis

(1987)Kalapanayiotis proceeded to and constructed an agricultural public road passing through the property of theapplicant» andin his written address that the road «was constructed urgently as public funds were allocated by the Government for the construction of the said road, which funds had to be utilized and 5 there wasno timetoresorttoacompulsoryacquisition».Counsel for the respondent further submitted by his written address that «this state of affairs is unsatisfactory» and that once the construction ofthe road wasmade withoutthe proper legal basis itamounted to the civilwrong of trespass to land, for which there 10 is ample remedy under the civil law before a competent Civil Court. Inviewoftheadmissionthattheactcomplained ofamountedto trespassontheapplicant'slandandassuchwasawrongful actany decision whether formal orinformal to pursue such act was also 15 wrongful. The case, therefore, boils down to the question as to whethersuch actand/ordecision wasanexecutory administrative act within domain of public law and as such amenable by a recourse under Article 146of the Constitution orwhether itisan actinviolation ofthecivillawrightsoftheapplicantwhichiswithin 20 the exclusivedomain of privatelaw. Counsel fortheapplicantsubmittedthatthefactthatthe officers or employees of the Board proceeded to utilize funds made availabletotheBoardbytheGovernment, showsclearlythatinso doing, they acted on behalf and on the instructions of the Board. 25 Furthermore, the admission of the respondent that the act complained ofwasdoneontheirbehalf,leadstotheinference that irrespective of the absence of a formal decision recorded in the minutes there was in any event a decision by the respondent Board to proceed with the commission of the actcomplained of. 30 Counsel concluded that in the circumstances the applicant is entitled topursue her claimbya recoursebefore thisCourt under Article 146of the Constitution. Underparagraph 1ofArticle 146oftheConstitutiona recourse liesbefore theSupreme Constitutional Courton a complaint that 35 a decisison, an act or omission of any organ, authority or person exercising any executive or administrative authorityiscontrary to any of the provisions of the Constitution or ofany laworismade in excess or inabuse of powersvested insuch organ or authority orperson. 40 1530 3C.L.R. Loucaldou " Impr.Board K'yiotis S a w i d e s J. Under paragraph 2 for a recourse to be maintenable a person hastosatisfy the Court that an existing legitimate interest of hisis adverselyanddirectlyaffected bysuchdecisionoractoromission. There isno question in the present case that the respondent is 5 an authority exercising executive or administrative authority and therefore itsdecisions, actsoromissions can be made the subject ofarecourse,providedtheprerequisitesofparagraphs 1 and 2of Article 146ofthe Constitution are satisfied. Thefirstquestion therefore whicharisesiswhethertherewasan 10 actordecision taken bythe respondent contrary toanyprovision ofthe Constitution orofany law. Itis common ground in the present case as earlier mentioned thattherespondent Boardwithoutexercisingitspowersunderthe Villages (Administration and Improvement) Law, Cap. 243, 15 section 22(b) and the Compulsory Acquisition of Property Law, 1962 (Law 15/1962) proceeded with the construction of a road passing through the applicant's property without previously havingobtained the consentof the ownerorhavingsetin motion the machinery of compulsory acquisition and requisition of the 20 property. It is admitted by the respondent that by so doing it trespassed upon the property of the applicant. It is, therefore, abundantly clear that the respondent Board acted inviolation of theaforesaid lawsand alsoofArticle23ofthe Constitution. The commission of the wrongful act has never been disputed. 25 Counselfortherespondent, however, raisedthequestionthatthe recourse is not maintenable because there is no decision of the Board recorded inthe minutes.Ifindsuch contention untenable. There isinthe first place a positive act. Although counsel for the respondent alleges that the act complained of was made by 30 servants and/or agents of the respondent, the whole tenor of his address is to the effect that such act was authorized by the respondent Board and carried outon itsbehalf forthepurposeof utilizing money which had already been made available by the Government for the purpose. Indeed Icannot see how anybody 35 elseotherthantherespondentcouldutilizesuchfundswhichwere madeavailabletoitbytheGovernmentorhowcouldanybodyuse thesaidfunds withoutauthorityfromtheBoard.Irrespectiveofthe factthatthereisnoformaldecisionrecorded intheminutesallthe facts of the case and the surrounding circumstances lead to only 1531 S a w i d e s J. Loucaldouv.Impr.BoardK'yiotis

(1987)oneinference thattheactinquestionwastheproductofadecision ofthe respondent Board. IntheresultIhavecometotheconclusionthatthereisanactor decision ofthe BoardwhichiscontrarytotheConstitution and the lawentitlingthe applicant,whose'existinglegitimate interest, that of the right to free possession and enjoyment of her property safeguarded byArticle23 of tfie Constitution has been adversely and directly affected, by such act and/or decision, to file and pursue a recourse under Article 146. 5 I shall now deal with the contention of counsel for the 10 respondent that once a complete remedy exists under the Civil Lawthepresent proceedings are futile. Theanswertosuchargumentissimple.Whenacasefallswithin the ambit of Article 146 theexclusivejurisdiction ofthe Supreme Court cannot beoustedorlimitedinanywaybythemerefactthat 15 other remedy is available before a civil Court. Useful reference may be made inthisrespect tomyjudgment inthe caseofZavros v. TheDistrictOfficerofPaphos

(1986)3C.L.R.44inwhichatpp. 49-50 the following are stated:«Iwishto stressrightfrom thebeginningthatthisCourthas 20 exclusive jurisdiction over cases falling within the ambit of Article 146and itsjurisdiction cannot be ousted orlimitedin anywaybythemerefactthatanotheractionispending before another Court.ThejudgmentsofthisCourtaredeclaratoryof therightsof aparty whoifsuccessful maypursueanyremedy 25 for damages under paragraph 6 of Article 146, before any other Court. In Kyriakidesv.The Republic, 1R.S.C.C. 66the Supreme Constitutional Court, following the dicta in Ramadan v. The Electricity Authority of Cyprus, 1 R.S.C.C. 46 held the 30 following atpp.74-75: 'Therefore, intheopinion ofthisCourt,inrespectofall wrongful acts or omissions referred toinArticle 172 and which acts or omissions come within the scope ofArticle 146an action fordamagesliesinacivilCourt onlyunder 35 paragraph 6ofsuchArticle,consequent uponajudgment of thisCourt under paragraph 4 of thesame Article,and in such casesan action does not liedirectina civil Court byvirtueofthe provisionsofArticle 172. 1532 3 C.L.R. 5 10 15 Loucaldouv.Impr.BoardK'yiotis S a w i d e s J. Objection (c):In itsJudgment inApplication 1/61 this Court has defined the limits between its administrative jurisdiction created byparagraph 1 ofArticle 146and the jurisdiction of the High Court and inferior courts. In accordance with that judgment, in case of doubt on account of apparent or alleged conflict of jurisdictions, the decisive test isto look first at Article 146 in order to determine whether the particular matter is within the exclusivejurisdiction of thisCourt undersuchArticle*. The above decision was also followed in the case of Solomou v. The Republic, 1 R.S.C.C. 96 in which a submission made on behalf of the applicant that a parallel legal remedy existed under Article 172 of the Constitution and, therefore, no recourse could be made under paragraph 1ofArticle 146,wasrejected bythe Court.» For all the above reasons this recourse succeeds and the sub judice act and/or decision of the respondent which isillegal and wastaken in excess and abuse of powers ishereby annulled with costsinfavour ofthe applicant. 20 Subjudice decision annulled withcosts infavourofapplicant. 1533