clr/1987/1987_3_1905.pdf

(1987)Therecourse of the appellantdirectedagainst thedecision, communicated by theletterof 30 178 was dismissed Hencethisappeal It must be noted that though there was raised in the opposition the preliminary issuethatthesubjudicedecision isnotofanexecutory nature,the issuewas nottried ordecided by thetnalJudge 5 Ajoint statementof counsel filed inthe course of thisappeal asserted that the sub judice decision was reached after a new application by appellantto the respondentand after reconsideration of thematterby thelatter Held, dismissingthe appeal

(1)Theissuewhe'her the sub judice decision isof an executory naturemaybe examined inthecontext of thisappeal This 10 Court isseised of thecase as a whole

(2)The sub judice decision is confirmatory of the earlier decision of the respondent of 23 October 1973 To the extent to which the said decision is not confirmatory and, inparticular, inrelationtotheaforementioned reason, such decision was of apreparatory nature 15 Looked upon asa whole thedecision containedintherelevant part of the aforesaid letterof 30January 1978 canbe descnbed, abo,asadecisionofan informative nature, informing theappellant comp? .,of the intentionsof the Central Bank

(3)Thecontentsofthejointstatementofcounsel for thepartiescannotalter the real natureof thesub judicedecision so as torender itexecutory once tn substance and in fact itwas not executory 20 Appeal dismissed No order as tocosts Cases referred to 25 LanitisBros Limitedv TheCentralBank of Cyprus

(1979)3 C LR 176, Ktenas (No 1) ν TheRepublic

(1966)3 C LR 64, LanitisBros Limited(No 2)v TheCentralBankofCyprus

(1974)3CLR 328, Dr Ν G MarangosLtd ν TheMunicipalityof Famagusta

(1979)3 C LR 73, Pavhdesv TheRepublic

(1977)3 C L R 421, Tamsv TheRepublic {1978) 3C LR 314, HadjiPanayiv TheMunicipalCommittee ofNicosia 11 ' • . ' ί r The Republic ν Georghidde*

(1972)'i ( I Η "·<Ί 1906 υ 30 3 C.L.R. Lanitis Bros v.Central Bank Appeal. Appeal against thejudgment of aJudge of the Supreme Court of Cyprus (A.Loikou.J )given on the 1stJune, 1979 (Revisional Jurisdiction Case No. 138/78*) whereby appellant's recourse 5 against the decision of the respondent to treat the appellant company as being resident in Cyprus but controlled by nonresidents and therefore, not being able,without thepermissionof the Central Bank, toborrow money from residentsinCyprus was dismissed. 10 /?•Johnson Q.C. with G. Poiyviou and K.Michaelides, for the appellant. A. Evangelou, Senior Counsel of the Republic, for the respondent. Cur.adv. vult. TRIANTAFYLLIDES P. read the following judgment of the 15 Court. On 15 November 1984 the proceedings in thiscase were stayed and the delivery of the reserved judgment was postponed until there would be purged, to the satisfaction of this Court, contemptofCourtwhichhad been committedbythechairmanof the appellant company and which wasregarded asattributable to 20 such company too. Subsequently, the contempt was purged in a mode which we considered satisfactory, namely by means of a unanimous resolution of the board of directors of the appellant company which not only disassociated the company from the 25 communications ofitschairman which resulted inthe commission of contempt of Court as aforesaid, but, also, condemned such communications and expressed profound regret for them. We,therefore, proposetodelivernowthereservedjudgmentin thiscase and, aswasalreadystated on 15November 1984, when 30 we made the order stayingthe proceedings, ournowstated to be the conclusion regarding the outcome of this case has been unanimously reached prior to the 13 February 1984; and, consequently, the retirement, in the meantime, of one of the Judgeswhoheard thisappeal,Mr.Justice Hadjianastassiou, does gc not prevent usfrom delivering ourjudgment now: *Reported in

(1979)3 C.LR 176 1907 TrlanUfyUides P. LanttiaBrosv.CentralBank

(1987)Thisappealhasbeen madeagainstthefirstinstancejudgmentof a Judge of this Court by means of which there was dismissed a recourse of the appellant company against the decision of the respondent Central BankofCyprustotreatthe company asbeing resident inCyprus but controlled bynon-residentsand, therefore, not being able, without the permission of the Central Bank, to borrow money from personsresidentinCyprus(seesection32

(3)of the Exchange Control Law, Cap. 199, as amended by the Exchange Control (Amendment) Law, 1972 (Law53/72)). 5 Thefactsofthiscasearesetout lucidlyinthecarefully p r e p a i d 10 first instancejudgment ofthelearned trialJudge (seeLanitisBros. Limited v. The CentralBank of Cyprus,

(1979)3C.L.R. 176)and, therefore, we need not repeat them. The subjudice decision wastobe found, according to counsel for the appellant, in a letter of the respondent dated 30 January 15 1978. When the Opposition to the recourse was filed a preliminary objection was raised that the complained of decision of the respondent was not of an executory nature; and that, consequently, no recourse could be made againstitunderArticle 20 146of the Constitution. Itistrue that when the case wasargued before the learned trial Judge counsel stated that they had agreed not to argue preliminary issues but toargue only the meritsof the case and, as a result, the said preliminary objection of counsel for the respondent that the complained of decision was not of an executory nature was not argued before, or decided by, the trial Judge. 25 This Court decided, inthe course of the hearing of the present appeal, toconsider the issueof whetherthesubjudice decision is 30 }fan executory nature asitisa matter relevant toits competence toexercisejudicialcontroloversuch decision underArticle 146of the Constitution. Such course was clearly open to us (see, for example, in this respect, Ktenas (No.l) v. The Republic,

(1966)3 C.L.R. 64, 70); 35 and we have invited and heard arguments from counsel on both sides on the issue in question. 1908 3 C.L.R. Laη1tieBros v.Central Bank TriantafyUidea P. 0n2oOctobfc. 1' .'3theappellantwas treatedas being resident in Cyprus but controlled by persons resident outside the Republic and its financiers in Cyprus were informed by the respondent Central Bank thatfor exchange controlpurposes the continuation 5 of granting banking facilities to the appellant company required theapproval of theCentralBank (see, inthisrespect,LanitisBros. Limited (No. 2) v. The Central Bank of Cyprus,

(1974)3 C.L.R. 328, 332). There followed lengthy oral and written communications 10 between counsel for the parties which culminated inthe aforesaid letter of 30 January 1978, in which there were given the reasons for deciding to consider the appellant company as being controlled by non-residentsof the Republic. One such reason was that the Central Bank did not have jc; evidence as regards the extent to which the shareholding of the appellant company was beneficially owned by residents in Cyprus. We have reached the conclusion, after careful consideration of the matter, that the sub judice decision is confirmatory of the 20 earlier decision of the respondent on 23 October 1973 and, therefore, it could not be challenged as an executory decision, under Article 146 of the Constitution,by the recourse which was determined by the judgment against which this appeal was made (see, inter alia, in this respect. Dr. N.G. Marangos Ltd. v. The 25 Municipality of Famagusta,

(1979)3 C.L.R. 73 and the case-law referred to in thejudgment in thatcase, at p. 76). Totheextent towhich thesaid decision isnotconfirmatory and, in particular, in relation to the reason given by the Central Bank thattherewas notbefore itevidence asregards theextenttowhich 30 the shareholding of the appellant company was beneficially owned by residents inCyprus, such decision was of a preparatory natureand itwas, therefore, again notof an executory natureand could not be made the subject-matter of a recourse under Article 146 of the Constitution (see, interalia, in thisrespect, Pavlides v. 35 The Republic,

(1977)3 C.L.R. 421 and Tanis v. The Republic,

(1978)3 C.L.R. 314). Looked upon as a whole thedecision which iscontained inthe first part of the aforesaid letter of 30 January 1978 -(and we are 1909 Triantafyllides P. LanltisBrosv.CentralBank

(1987)not concerned with the second part ot that letter) - can ue described, also, as a decision of an informative nature, informing theappellant company of the intentions of the Central Bank and. again, because of such nature, it is not an executory decision which may be challenged bya recourse under Article 146 of the 5 Constitution (see, inter alia, in this respect, HadjiPanayi v. The Municipal Committee ofNicosia,

(1974)3 C.L.R. 366). Duringthe hearing of thisappeal there wasfiled ajoint written statement by counsel for the parties to the effect that, after meetings held in the Office of the Attorney-General which were 10 attended by representativesof both parties, itwasagreed that the appellant company would make a new application tothe Central Bank, intne light, among other things, of allthat had transpired at such meetings, and that a newapplication having been made the Central Bank reconsidered thematterand reached anewdecision 15 which isto be found in the aforementioned letter of 30 January 1978. In our view, however, the contents of this joint statement of counsel forthepartiescannotaltertherealnature ofthesubjudice decision so astorender itexecutory once insubstance and infact 20 itwas not executory. For all the foregoing reasons this appeal fails and has to be dismissed ontheground thattheappellantcompany,inany event, could not have challenged the sub judice decision by means of a recourse underArticle 146ofthe Constitution; and thisCourt can 25 reach this conclusion irrespective, and independently, of the reasonsforwhichthelearnedtrialJudge dismissedtherecourseof theappellant company, because inan appeal such asthe present onethisCourtisseised ofthecaseasawhole(see,interalia,inthis respect, 777eRepublic v. Georghiades,

(1972)3 C.L.R. 594). 30 We do not propose to make any order as to the costs of this appeal. Appeal dismissed. No orderasto costs. 1910