clr/1987/1987_3_1693.pdf

(1)5 Motortransport— TheMotorTransportRegulaoonLaw9/82,asamended by Law 84/84 — Transportationofpassengersbynonprofessionalearners— Section 11

(2)— Needs ofinterestedpartyidentifiedwithneeds of acompanylimited of which the interested party was the director and mam shareholder — Amounts to misconception of the needs of the interestedparty Company Law— Theseparateness inLaw of the comnanv from itsshareholders and management 10 15 20 25 MannosKounnaswas licensed touse bus HS816 for thetransportationto and horntheirwork of thestaff of GrecianHotelbelonging toGrecianHotel Enterprises Limited, of which he is the main shareholder and managing director The permit was renewed and was in force in 1985 when Mr Kounnas applied for the licensing of a new andbiggerbus for thetransport needs of thehotel TheLicensing Authonty found theapplicationjustified Uponahierarchical recoursethePermitsReview Authority were satisfied thatexisting busservices in thearea could notsatisfy the transport needs of the personnel ofGrecian Hotel and confirmed the decision of the Licensing Authonty The permit provided in terms that the new bus was licensed in substitution for bus HS 816 Held, annulling the sub judice decision

(1)Section 7

(1)of the law authorisesthesubstitution of alicensed vehicle in-eitheroneoftwo situations ' upondestruction or compulsory loss Thematenalbefore therespondents did notestablish thatbus HS816 was eitherdestroyed orcompulsoriry lost Iffollowsthatrespondentsactedundermisconceptionoftheprovisions ofthe law relevant tothesubstitution of a licensed vehicle 1693 Eterla Metaforon Aherltou v. LicensingAuthority

(2)The law limits in terms amenity to license the transportation of passengers by a non-professional earner to satisfaction of the needs of the business or trade of the earnerhimself (see s 11

(2)of thelaw) Evidently, the respondents identified his needs with those of Grecian Hotel Enterpnses Limited notwithstanding the separateness in law of the company from its shareholders andmanagement Itfollows thatthedecision hastobeannulled for misconceptionofthefacts relevant totheneedsoftheapplicantfortheuse of a bus for his business ortrade 5 Subjudice decisionannulled. No orderas to costs 10 Casesreferred to. Bank of CyprusHoldingsν Republic

(1985)3 C LR 1883; Bank of Cyprus ν Republic

(1983)3 C LR 636 Recourse. Recourse against the decision of the respondent whereby the 15 licence issued tothe interested party inrespect of bus No.HS 816 was replaced by a new licence for a bigger bus with a sitting capacity of 46 instead of

1. N.Papaefstathiou, for theapplicants. M.Cleridou -Tsiappa(Mrs.), for the respondents. 20 M. Cleopas, for the interested party. Cur. adv. vult PIKISJ. read thefollowing judgment. In1980 MarinosKounnas was licensed touse bus HS816 for thetransportationtoand from theirwork of thestaff of Grecian Hotelbelonging toGrecian Hotel 25 Enterprises Limited, of which he is the main shareholder and managing director. The permit was renewed and was in force in 1985 when Mr. Kounnas applied for the licensing of a new and biggerbus for thetransport needs of thehotel.Thenew bus hada sitting capacity of 46 compared to36, thecapacity of bus HS
2. 30 The application was opposed by theprofessional carrierslikelyto be affected by thegrant of thepermit.After hearingtheparties,the Licensing Authority found theapplication justified and approved it in exercise of the powers vested in them by s. 11 of the Road Transport Regulation Law*. An appeal was launched before the 35 Permits Review Authority that led to re-examination of the substance" of the application. Like the Licensing Authority ^respondents were satisfied that existing bus services in the area could not satisfy the transportneeds of the personnel of Grecian •Law9/82amendedbyLaw84/
3. 1694 3C.L.R. EteriaMetaforonAheritouv. LicensingAuthority PUdeJ. Hoteland confirmed the decision ofthe LicensingAuthority.The permit provided in terms that the new bus was licensed in substitution for busHS
4. Aftercareful considerationofthecircumstancessurroundingthe 5 issue of the licence and the identity of the licensee, Iam of the opinion that the decision must be annulled for the following two reasons: (a) Misconception of the provisions of the law relevant to the substitution ofa licensedvehicle, and 10 (b) misconception of the facts relevant to the needs of the applicantfortheuseofabusfor hisbusinessortrade. Section 7

(1)of the lawauthorises the substitution of a licensed vehicle in either one of two situations - upon destruction or compulsory loss.Establishment of the prerequisites isa condition 15 precedent to approval forthe substitution of the licensed vehicle. Thelawstipulatesone morepre-condition thattheapplication for replacement bemadenotlaterthanone yearfromthe occurrence oftheeventthatnecessitatedthereplacement.Theapplication for the licensingof the newcarwasnot founded on the provisionsof 20 s.7ofthelawanditdidnotspecifythatthenewcarwouldbeused insubstitution of the old one. Moreover, neither the respondents nor the Licensing Authrority examined the merits of the application from theangle ofs.7despite reference tosubstitution in the terms of the permit itself. The material before the 25 respondents did not establish that bus HS 816 was either destroyed or compulsorily lost. On the contrary, the matenal before the Permits Review Authority did indicate that despite its poor condition some use wasstillmade ofbusHS816. Furthermore, the respondents didnotaddressthemselves atall 30 tothequestion whether on an application for replacement itisat all permissible to authorise the use of a vehicle with a bigger passenger capacity. The misconception under which the respondents laboured affected the premise of their decision, and for that reason rendered defective the exercise of administrative 35 power. The decision is also assailable for misconception of the facts relevant to the needs of Marinos Kounnas. Evidently, they 1695 Pikisj. Eteria Metaforon Aherltou v. LicensingAuthority

(1987)identified his needs with those of Grecian Hotel Enterprises Limited notwithstanding the separateness in law of the company from its shareholders and management*. The misconception of the facts was material for contrarytothesubmission of counsel for the respondents, the law limits interms amenity to license the 5 transportation of passengers by a non-professional carrierto satisfaction of the needs of the business ortrade of the carrier himself (see s. 11

(2)of the law). The limitation is compatible with thespirit and tenorof the law, particularly thepartsof itthatattach liability tothelicensee for breachofthetermsandconditionsof the 10 licence. Foreach one of the reasons indicated above, thedecision must be annulled. And pursuant to the provisions of article 146.4(b) I declare ittobe wholly void. Let there be no order as tocosts. 15 Subjudice decision annulled.No order astocosts. •See Bank of Cyprus Holdingsν Republic

(1985)3CLR 1883 and the decision at first instancein the caseof BankofCyprusν Republic

(1983)3CLR 636 1696