clr/1987/1987_3_581.pdf

(1)The onus ison the applicant toestablish 15 20 abuse of discretionary powers Such powers should be exercised for the purposeforwhich theywere givenandtherelevant actshouldnotbecontrary to law or towell settledpnnciples of administrative law

(2)ThisCourthasnotbeenpersuadedthattherespondentAuthonty. which acted under the said regulation 2. exercised its discretion in abuse of its powers (3| The contentionthat the aforesaid regulation iscontrary to Art 24 4 of the Consttution in that the charges in question were of a prohibitive or 581 Jeropoulos & Co. v. Republic (1»«7) destructivenaturefails, becausethechargesinquestionwere notexorbitant Recoursesdismissed with costs CasesreferredtoImpalexAgenciesLtd ν TheRepublic

(1970)3 CLR 361, 5 Tourpeki ν The Republic

(1973)3 C L R 592 Xydias ν The Republic

(1976)3 C L R

1. TheSinger Sewing Machineν TheRepublic W978)3 C LR 71andon appeal (1979J3CLR 507 Recourses. 20 Recourses against the decision of the respondent to raise charges on applicants' vessels calling at Limassol port by taking the recorded tonnage of thevessel as open-decker and notas an closed-decker vessel. St. Mc. Bride, for the applicants. 15 N.PapaefstathiouwithT.Papadopoulos, fortherespondent. Cur. adv.vult. KOURRIS J. read the following judgment. By recourse No. 172/86theapplicantspray for.1.Adeclaration thatthedemandsof the Respondentcontained 20 in their invoices 154-01/86, 235-01/86, 243-01/86 and 243/101/86 dated 27/1/86, 31/1/86, 31/1/86 and 6/2/86 respectively and attached hereto marked A,B,C and D respectively for the payment of £359 77, £276.80, £88.82 and £492 08 respectively are made in excess or in abuse 25 of its powers.
2. A declaration thatwhen closed shelter decker vesselscall at Cyprus PortstheCyprus PortsAuthority (hereinafter CPA) abuses its powers should itraise its charges on thehighest net registered tonnage for the vessel when open and not her net tonnage {and 30 closed tonnage) as shown on her International Tonnage Certificate.
3. A declaration that the Applicants are entitled to the appropriate refund of theovercharges as set out inthestatement of facts, orsuch overcharge as theApplicants shall show. 35 582 3 C.L.R. Jeropoulos &Co.v.Republic Koniris J. Byrecourse No. 153/86the applicants pray foridentical reliefs butfor different periodsof time. These recourses were heard together asthey present common questionsoflawand fact. 5 Thefactsshortlyarethese:-The CyprusPortsOrganisation was established by LawNo.38of 1973and itwasrenamed toCyprus PortsAuthorityby Law59of 1977,the present respondent. The respondent Authority is a corporation of public law, the object ofwhichistomanage and exploitthe ports oftheRepublic 10 andtoundertake andmanagetheexistingportswithalltheirassets and liabilitiesincludingtheport ofLimassol. Applicant 1 is the agent of applicant 2 and he is liable to the respondentAuthorityforthepayment ofportcharges,forthecalls of theshipsof the applicant 2atCyprusports. 15 The vessels which are listed in the application are constructed foruseeitherasopen-decker vesselsorclosed-deckervesselsand depending upon their use, the said vessels have a greater cubic capacity and thus lesser nettonnage when used as closed-decker vessels.ForeachandeverycallatLimassolportthesaidvesselsat 20 all material times, have called as closed-decker vessels and the respondent Authority raised the charges for the said vessels asif the vesselsentered theport asopen-decker vessels. The complaint of the applicant isthatthe respondentAuthority ought to have raised the charges bytaking the recorded tonnage 25 of the vessel as closed-decker vessel and not as an open-decker vessel, when itwasclearthat the saidvessels when usingthe port of Limassol, were using it as closed-decker vessels. Hence, the present recourse. Counsel for the applicants contended that the Authority has 30 abused itspowersinthesenseofparagraph 1 ofArticle 146ofthe Constitution because the rules and the law do not make express provision fordualtonnage/purpose vesselsandthustheAuthority in applying the law and the rules made therein, had to act reasonablyand equitablywhenraisingthesechargesforvesselsof 35 thisnature. Hurther, he contended that even ifthere isan express provision for dual tonnage/purpose vessels then the Authority abused itspowers because it charged for services rendered to a 583 Kourris J. Jeropoulos & Co. v. Republic

(1987)vessel on atonnagethathad no relation toavessel atthetimethe services were rendered Counsel for the respondent contended that the Authonty had power to raise the charges in respect of the ships in question in view of rule 2 of the regulations made in exercise of the powers 5 vested in the Authonty by s 25 of Law 38/73 which were published in Supplement No 3 to the Official Gazette under ΚΔΠ45/76 The matenal regulation for the purposes of this case is regulation 2 which reads as follows 10 «'καθαρά χωρητικότης' (κ.χ )σημαίνει την καθαράν χωρητικότητα σκάφους ήτις εμφαίνεται εν τ ω πιστοποιητικοί) νηολογήσεως ή εν τ ω πιστοποιητικά) καταμετρήσεως αυτού, εις ήν δε περίπτωσιν εις τα τοιαύτα πιστοποιητικά αναγράφονται δύο ζεύγη 15 χωρητικοτήτων, την καθαράν χωρητικότητα του ζεύγους της μείζονος χωρητικότητος εις ήν περίπτωσιν το σκάφοςδεν είναι εφωδιασμένονδιατων ω ς ά ν ω πιστοποιητικών, η καθαρά χωρητικότης αυτού υπολογίζεταιως ήθελεν ορίσει ο Οργανισμός» 20 {«'Nettonnage' meansthenettonnageof thevessel,which appears in the certificate of registration or the tonnage measurement certificate, and in case when in the aforesaid certificates there appear two pairs of tonnages, the net tonnage of the pair of the higher tonnage and in case where 25 the vessel is not provided with such certificates, her net tonnage iscalculated as theAuthonty may determine») Counsel for the respondent Authonty submitted that the Authonty acting under regulation 2 and in accordance with the discretion given to it,fixed the fee in relation tothevessels at the 30 higher tonnage as open-deckervessels Regulation 2 of the said regulations refers to «εις ην περίπτωσιν εις τα τοιαύτα πιστοποιητικά αναγράφονται δύο ζεύγηχωρητικοτήτων». («in case when in the aforesaid certificates there appear two 35 pairs of tonnage») In my opinion this phrase refers to dual tonnage/purpose vesselsand Ihave nodoubtwhatsoever thatthisregulation makes provision for dual tonnage/purpose vessels and the respondent 584 3 C.L.R. Jeropoulos & Co. v. Republic KourrisJ. Authonty was empowered toraise charges onthesaidvesselsand the question anses whether they exercised their discretionary powers properly or inan abusive manner It is regrettable that neither counsel referred the Court to any 5 authonties on this point or any other point that falls for determination I thinkthatrelevant onthispointisthecase of Impalex Agencies Ltd ν 'The Republic

(1970)3 C LR 361 where it was heldthat the discretionary powers vested in the administration should be 10 exercised for thepurpose for which they are given otherwise itis abuse andexcess of powers andthattheonusisontheapplicants to establish such abuse Also, in the case of Tourpeh ν The Republic

(1973)3 C LR 592 the Courtheld that there is abuse and excess of powers iftheactiscontrarytolaw ortowell settled 15 pnnciples of administrative law In view of the fact that the respondent Authority acted under regulation 2 of thesaid regulations I have notbeen persuaded by applicants that they exercised their discretion in abuse of their powers andthispointfails 20 The next point raised by counsel for the applicants is thatthe said regulations are contrary to paragraph 4 of Article 24 of the Constitution in that the charges raised were of a prohibitive or destructive nature Fromthe particularsset out intheapplication itappearsthattheovercharge alleged by theapplicantsamounted 25 to]ust over £100 -for eachvessel In accordance with our case law the charges paid should be exorbitant (Vide Loizos Xydtas ν The Republic

(1976)3 C L R 303 and 7?jeSinger Sewing Machine Company ν The Republic

(1978)3 C LR 71 and on appeal

(1979)3 C LR 507) Idonot 30 thinkthatinview of the fees paid andtheovercharge alleged that the fees are exorbitant in the sense of paragraph 4 of Article 24 Therefore, thispointalso fails Having considered the facts which the respondent Authonty had before itinraising thesaid charges, I amof theopinionthat it 35 was reasonably open toittoimpose the charges which they did Inthecircumstancesboth recourses are dismissed with costs Coststobe assessed by the Registrar Recoursesdismissed with costs 585