(1987)1987Jdnuaa 27 fTRIANTAFYLLIDES Ρ A LO'ZOU SAWIDES PIKIS KOURRIS JJ ] DESPINA HADJILOIZOUANDOTHERS, Appeliants-Apphcanis, ν IMPROVEMENTBOARD,OFAYIOSDHOMETIOS Re&noiicit'n· (Revisional Jurisdiction Appeal No 370) Compulsory acquisition—Acquisition of immovable property in 1954by local Authdnty in virtue of section 36 of the Villages (Administration and Improvement) Law Cap 243—Abandonment ofpurpose ofacquisitionafter the expiration of 10years as from the date of the acquisition—Claim by former owners thatproperty should have been offered back to them—Law 5 applicable—It is the law obtaining atthe time the nghts of the parties were crystallised—It is,therefore section38of Cap 243and not section ]3ofthe Land Acquisition Law, Cap 226 or Article 235 of the Constitution or the Compulsory Acquisition ofProperty Law 15/62—Ambit ofsection38 of Cap 243 10 Construction of statutes—Provisos Pnnciples governing their construction— The Villages(Administration and Improvement) Law, Cap 243—Theprovtso to section 38—//is not a mere proviso, but a provision extending and supplementing the main partof thesection Construction ofstatutes—Repealbynecessaryimplication—Pnnciples applicable 15 Recourse forannulment—Practice—Several issues raised touching the validity of the subjudice act or several objections in theopposition—Course tobe followed Executory act—Meaning of—Refusal toperform aduty—Whether productive of legal consequences 20 Early in 1954 the respondent compulsonly acquiredinvirtue ofit*powers under section36oftheVillages(Administration andImprovement} Law, Cap 243appellant's immovable propertyatAyiosDhometios,beingpartofPlot 49 ofBlock«N»,forthepurposeoferectingapublicmarket The compensation was paid andthe property vested in the respondent Board Untiltodaythemarkethasnotbeenerected In 1966the appellants started claiming theoffer to them of the land In questiononthegroundthattheundertakinginconnectionwithwhichtheland hadbeenacquiredwasabandoned 646 25 3 C-L.R. 5 HadjILolzou v. Impr. Board Ay. Dhometlos Finallyonthe13thApnl 1982theChairmanof theImprovementBoardsent to appellants advocate a letter to the effect that the purpose for which the property was compulsonly acquired was never abandoned and that the relevantplansexistedbuttheywerenotexecutedbecause offinancial reasons onaccountof theTurkishinsurgence of 1963 andtheoccupationbytheTurks ofagreatpartoftheareaoftheImprovementBoard As a result of the said letter the appellants filed a recourse to thisCourt claimingadeclarationthatthedecisioncommunicatedbytheletterof 13 4 82 whereby therespondentrefused tooffer backtothemtheirsaidlandisnulland 10 void The tnal Judge directed that certain points be determined as preliminary pomtsoflaw Thesepointswere
(1)Lawapplicabletothepresentcase
(2)HastheBoardadiscretionoranobligation tooffer backtheland 9 15
(3)Inviewof thelapseofmorethantenyearsfrom thedateofacquisitiontill thedateoftheallegedabandonment whatarethenghtsoftheapplicants unders 13oftheLandAcquisitionLaw Cap 226^And
(4)Isthe act challenged an executory administrative act or a confirmatory one andtherefore therecourseisoutoftime'' 20 25 30 The tnal Judge held that (a) The law applicable to the present case is neither Art 23 5 of theConstitutionnorthe LandAcquisition Law Cap 226 northe Compulsory Acquisition Law 15/62.butthelaw obtainingatthe time of the crystallisation of the nghts of the parties on 22 7 1954 (when the •ancbonoftheGovernorwaspublished),ιe section37(now38)ofCap 243 (b)Undersection 38 of Cap 243 therespondent Boardhas adiscretion,but notanobligation tosell,(c)Ontheassumptionof theapplicability of theLand Acquisition Law, Cap 226,theapplicantsare,invirtue ofsection13
(2)(d)(n) precluded by lapse oftimetoany nght onthesubject property Inthelight of theabove conclusions thetnalJudge thoughtitunnecessary to deal with the fourth question and dismissed the recourse Hence the present appeal Held, dismissingthe appeal (A) Per A Loizou, J Tnantafyllides,Ρ and KoumsJ, concurring 35 40
(1)Inholdingashedidinrespect ofthefirstpreliminarypointoflaw thetnal Judge relied on thejudgment of the Full Bench of thisCourtin Pikisν The Republic
(1968)3C L R 303 Therelevantpassageisatpage307 Inthelight of the statement of the law in Pikis case, supra the decision that the law applicable istheLawobtainingatthetimeof thecrystallisation ofthenghtsof the partiescannotbe faulted
(2)As regards thesecondpreliminary pointof law theappellantssubmitted 647 HadjILolzou v. Impr. Board Ay. Dhometios
(1987)that section 38 of Cap 243 has no application in this case where the whole property has not beenused for the purpose it hadbeen acquired Had it not been forthe proviso to section 38 and m the light of the phrase in the enacting partofthesection«in excessofthe extent actually requiredfor the purposes in respect of which it has been required», the appellants' contentionwould havebeenvalid 5 However, applying the pnnciples expounded tn PASYDY and Others ν The Municipality of Nicosia
(1978)3 C L R 117 and in Georghladesv The Republic
(1969)3 C L R 396 as regards the constructionof provisos to the construction ofsection38,theconclusionisthattheproviso inquestion«isnot 1 0 in substance amereprovisobutitisaprovision extendingandsupplementing the main part of section38 Having regardto thewordingof the proviso and in particular to the words «or if only a portion of such immovable property is in excess of such requirement», the conclusion is that section 38 also covers cases where the whole of the propertyhas not been used 15 (B) PerSawides, J (l)The reasons given by the learned tnal Judge in his judgment which led him to his decision that appellants' recourse should be dismissed are very sound and no groundhas been shown that his reasoning is wrong in any respect 20
(2)The approach ofthetnalJudgetodisposeofthe firstthreepointsof law and, then, not to embark on the fourth, was correctand consonant with the normal practice of this Court By dealingwith thesubstanceofthecaseandadjudicatingonIt, the learned tnalJudgehas renderedusefulguidanceinthehandlingofothersimilarcases already pending beforethis Court and waiting the result of this appeal 25 (C) Per Pikis, J
(1)The first question that ought to be answered was the fourth which affects the justiciability of the sub judice act The jurisdiction under Art 146 isconfinedto thereview ofexecutory administrative acts An act isexecutory only if it is determinative ofnghts and obligations under the 3 0 law In order for an act of the administration to have such attnbute the law must put it in the hands ofthe administration to issuea decision definitive of thenghtsandobligationsaffectedthereby Refusaltoperformaduty Isnot of itself productive of legal consequences In such a case the omission continues and isjusticiable as acontinuingomission 35 Neither s38 of Cap 243 or s 13 of Cap 226 of their own or read in conjunctionwithArt 23 5 oftheConstitution makethereturnofland unused for the purposes of acquisition a matter of decision for the Acquinng Authonty Under s 13, Cap 226, if abandonment, objectively noticeable. occurs,acorrespondingduty arisestoreturnit 648 40 3 CX.R. HadjILolzou v. Impr. Board Ay. Dhometios What we are asked toexamine isconsequently notareviewable actunder Art 146 1and therecourse must therefore be dismissed 5 10
(2)Section 38 of Cap 243 deals specifically with the fate of property acquired by localauthorities Itcanco-exist withsection 13ofCap 226 Inthe absence of specific language to that end one cannot presume that s 13 repealed by necessary implication s 38 Inviewof theabove theappellantshadnonghttothere acquisition ofthe property as s 38 gave none nor were the respondents und^-r anv, corresponding obligation Thenghtsof the partieswith regard totheproperty crystallized before independence and therefore were not affected by the Constitution Appealdismissed Noorderas tocosts Casesreferredto 15 Kamkhdes ν TheRepublic 2 RS CC 49 Pikisv TheRepublic
(1965)3 C L R 131 Pikis ν the Republic
(1967)3C LR 562 Ramadan v £ A C l R S C C 4 9 Pikisv TheRepublic
(1968)3 C L R 303 20 Anastassiadesand Othersν MunicipalCommissionofNicosia3 RS CC 111 PASYDY and Othersν TheMunicipalityof Nicosia (197'8)3 C L R 117 Georghiadesv TheRepublic{1969) 3C LR 396 HjiLoizou and Othersν TheRepublic
(1984)3 C LR 70 25 Stavrou and Othersν TheRepublic
(1986)3 CLR 361 Vassihko Cement WorksLtd ν Violans
(1975)1C LR 256 Moustafa ν TheRepublic. 1RS CC 44 Appeal. Appeal against thejudgmentof aJudgeof the SupremeCourt 30 of Cyprus, (Stylianides, J ) given on the 25th February. 1984 (Revisional Junsdiction Case No 264/82)* whereby appellants' recourse against the refusal of the respondentsto offer back to •Reportedm
(1984)3CLR 70 649 HadjiLoizou v. Impr. Board Ay. Dhometios (19S7) them property compulsonly acquired in 1954was dismissed. Chr.Chrysanthou withA. DikigoropouIIos, for the appellants. A. LiatsosforKMichaelides, fortherespondent. Cur.adv. wit. TRIANTAFYLLIDES P.:Mr. Justice A. Loizou will deliver the 5 firstjudgment. A.LOIZOUJ.:ThisisanappealagainstthejudgmentofaJudge ofthisCourt by means ofwhich there wasdismissed the recourse of the appellants against the refusal of the respondents to offer back to them their property which was compulsonly acquired in 10
- Thefactswhich gaverisetotheappeal before usasverylucidly stated inthejudgment ofthelearned trialJudge arethese.Earlyin 1954 the Improvement Board of Ayios Dhometios decided to erect apublic market andselected for the purpose an immovable IS property owned by the applicants situated at Ayios Dhometios, being part of Plot 49, Block «N», comprising two donums, two evleks and 240 sq. ft. or thereabout, as delineated in red on the Government survey plan signed by the Chairman of Ayios Dhometios Improvement Board dated 21st April,
- 20 Thereupon, as it could not be acquired by agreement, it was compulsorilyacquired invirtueofthespecificprovisionsofsection 36 of the Villages (Administration and Improvement) Law, Cap.
- . On the4th May, 1954,anotice ofacquisition undersubsection 25 2ofthesaidsection 36waspublished intheofficial Gazette under Notification No.324 and the Governor approved the plan submitted and sanctioned the acquisition of such immovable property on 14thJuly 1954 -(seeNo.459 under subsection 4of the said section 36, published in supplement No.3to the Cyprus 30 Gazette of the 22nd July 1954). As no agreement was reached between theacquiring Improvement Boardandtheownersofthe land on the compensation, Application No. 85/54 was filed on behalf otthe Improvement Boardwherebyitprayedfor reference bythe Court to an arbitrator for the determination of the amount 35 ofthe compensation. The application was based ontheVillages(Administration and Improvement) Laws 1950-53 and the Acquisitions of Land Law, Cap.233, and Law No.26of 1952 assection 36
(4)of theVillages (Administration and Improvement) Law provided that «if the 40 650 3 C.L.R. HadjILolzou v. Impr. Board Ay. Dhometios A. LoUon J. owner of the immovable property does not agree with the Board asto the sum to be paid as compensation for it, the sum shall be determined inaccordance with the provisions of any lawin force for the time being, providing for the acquisition of immovable 5 property for public purposes» The compensation was paid and the property vested in the Board Untiltoday thepublic market has notbeen erected In1966theownersstartedclaimingtheoffer tothemoftheland inquestion onthegroundthattheundertaking inconnection with 10 which the land had been acquired was abandoned Bylettersdatedthe19thAugust1966and 19thofOctober 1966 theChairman oftheBoardinformed theapplicants'advocate that the undertaking had not been abandoned Drawings were preparedbyarchitectsandtenderswereinvitedin1967 15 In 1968the Board decided tomake certain modifications tothe drawings Duetofinancial difficulties andotherreasonsthe project has not as yet been implemented The applicants persistently as from 1973demandedunsuccessfully theoffer tothemoftheland On the 13th Apnl 1982 the Chairman of the Improvement 20 Board sent to applicants' advocate a letter to the effect that the purpose for which the property was compulsonly acquired was neverabandoned andthattherelevantplansexistedbuttheywere not executed because of financial reasons on account of the Turkish insurgence of 1963and the occupation bythe Turksofa 25 greatpartofthe areaofthe Improvement Board As a result of the above letter the appellants filed a recourse, which is the subject matter of these proceedings, whereby they sought a «declaration that the act/or decisionsofthe respondents communicated to them through their advocate under cover of 30 letterdated 13thApnl 1982,wherebyrespondentsrefused to offer backtotheapplicantsthepropertycompulsonly acquiredin 1954 under Notification No459 in the official Gazette No 3771 dated 22ndJuly1954isnullandvoidandofnoeffect whatsoeverhaving been made and/or taken contrary to the provisions of the Law 35 and/or the Constitution/or inexcessand/or abuseoftheirpowers ifany» Therespondentsmtheiroppositionraisedanumberofpointsof law Atthe commencement of the heanng on the application of bothcounselthelearnedtnalJudgedirectedthatthesaidpointsof 651 A. L o U o u J . HadjILolzou v. Impr. Board Ay. Dhometios (19$7) law be determined preliminary tothehearing of thesubstance of the case. Thepointsoflaw raised were:
(1)Lawapplicabletothepresentcase;
(2)HastheBoardadiscretionoranobligation toofferbackthe land?
(3)Inviewof thelapseof morethantenyears fromthedateof acquisition tillthedateof thealleged abandonment,what are the rights of the applicants under s.13 of the Land Acquisition Law,Cap.226?And,
(4)Istheactchallenged anexecutory administrative actora 10 confirmatory one, and therefore, the recourse is out of time? Regarding point
(1)above, namely the law applicable to the present one, the learned trialJudge after referring tothe cases of Kantklides v. The Republic, 2 R.S.C.C.49 at p.57, Pikis v. The 15 Republic
(1965)3 C.L.R. 131 at ρ 140; Pikis v. The Republic
(1967)3 C.L.R.562 atp.572; Ramadan v.ElectricityAuthority of Cyprus, 1 R.S.C.C. 49 at p. 57; Pikis v. The Republic
(1968)3 C.L.R. 303 at p.307; Anastassiades and Others v. Municipal Commission of Nicosia, 3 R.S.C.C. I l l , and to Article ?.?, 20 paragraphs3and5oftheConstitution,aswellastosections 15,23
(2)of the Compulsory Acquisition of Property Law, 1962 (Law No. 15 of 1962) held that«the Law applicable tothepresent case is neither Article 23.5 of the Constitution nor the Compulsory Acquisition Law, Cap. 226, nor Law No. 15/62. The Law 25 applicable istheLaw obtainingatthetimeof thecrystallization of therightsof theparties,on22ndJuly, 1954, i.e.section37 of Law No. 12/50, now section 38 of the Villages (Administration and Improvement)Law, Cap.243,underwhichthelandwas acquired by therespondentBoard». 30 In concludingas above the learned trialJudge relied mainlyon thejudgment of the FullBenchinthecaseof Pikisv.TheRepublic
(1968)3 C.L.R. 303 and the relevant passage of his judgment reads: «Therightsofthepartiesinthepresentcase crystallized onthe 35 date of the publication of thenotification on 22ndJuly 1954 - (See Exhibit No.5). Theconstitutionalprovisions of Article 23donotapply,firstly because theacquisitiontookplace long 652 5 3 C.L.R. 5 HadjILolzou v. Impr. Board Ay. Dhometios A. Lolzou J . before the coming into operation of the Constitution and. secondly, because the rightsof the parties crystallized on the date of the acquisition and it was not the intention of the drafters of the Constitution to bestow rights on persons who had none on the coming into operation of the Constitution. The Constitution isperspective and not retrospective.» Regarding point
(2)hereinabove mentioned, namely whether the Board has adiscretion or an obligation tooffer back the land. thelearnedJudgeafter construingtherelevantsection -section38 10 of Cap. 243 -held that thereunder the respondent Board has a discretion but no obligation tosell.He said: 15 20 25 30 «Ins.38'may'isclearlypermissive.Itgivesapermissive power to the Board, subject to the consent of the Administrative Secretary (nowthe Ministerofthe Interior - Article 188.3(c)of the Constitution), to deal with the question of compulsorily acquired immovable property in excessof the extent actually required for the purposes in respect of which it had been acquired in three different ways: either to sell, lease or exchange. 'May' cannot be interpreted as mandatory in the context ofthissection. Itdoesnotimposeanobligationonthe Board. If an imperative meaning isattributed to 'may', then what would be expected from the Board to do as the three powersarecompletelydifferent innature.The provisoisonly applicable when the Board exercisesitspower to sell.Ifthey decide to sell, then the owners have a right of pre-emption. The property hastobe offered tothem atthepriceatwhichit wasacquiredfrom them,givethemtherightoffirstrefusal and then sell to somebody else. If the Board does not decide to sell, then the proviso is inapplicable. The word 'mau' is distinctly a word of permission only; it is an enabling and empowering word. The Board has a discretion but no obligation tosell.» Regardingpoint
(3)hereinabove -lapseof morethanten years from the date of acquisition till the date of the alleged 35 abandonment and the right of the appellants under section 13of theLandAcquisition LawCap:226-thelearned trialJudge held 653 A. Loizou J . HadjILolzou v. Impr. Board Ay. Dhometios
(1987)that the time of abandonment being long after the ten years penod prescnbed by section 13
(2)(d)(n)of the Land Acquisition Law, Cap 226, the applicants are «precluded by lapse of timeto any nght on the subject property» The relevant passage of the judgment reads 5 «If theprovisions of s 13 of thegeneral law - Land Acquisition Law -were the law applicable again theapplicants are faced with an unsurmountable obstacle The acquisition took place in July, 1954 Definitely, in 1967 the purpose for which the property had been acquired was not abandoned as the 10 respondent Board hadprepared plansandinvited tenders for the erection of the public market Mr Dikigoropoulos submitted that in 1981 the object was abandoned Section 13
(2)(a) of the Land Acquisition Law Cap 226, reads - 15 Ί 3
(1)
(2)(a) Before any sale as in subsection
(1), the land shall, unless( ι) it has, m the meantime, been built upon or used for buildingpurposes,or (
- n)the abandonment, as in the said subsection provided takes place more than ten years after the date of the acquisition, be offered for sale, as in paragraph (
- b)of this subsection provided, to the person from whom the land has been acquired who shall signify his desire to purchase the land within six weeks from the date when the offer was made, otherwise he shall be deemed tohave refused the offer' 20 25 This creates a nght of re-emption for the owner if the abandonment takes place before the expiration of 10 years 30 from the date of acquisition In thiscase the respondent does notadmitthatthe object has been abandoned The applicants' contention is that abandonment took place The time of abandonment, however, islong long after theten years' penodprescnbed by 35 s 13
(2)(a)(π) Therefore, even ifthissection were applicable, 654 3 C.L.R. HadjILolzou v. Impr. Board Ay. Dhometios A. Lolzou J the applicants are precluded by lapse of time to any nght ο the subject-property» 5 Having amved at the conclusions aforesaid on the first three points of law the learned tnal Judge deemed it «unnecessary tc embark on the fourth question, ιe whether the contents of the letterof 13thApnl 1982 amounttoanadministrative executory act or aconfirmatory one» As against thejudgment of thelearnedtrialJudge theapplicants in the recourse took the present appeal which was based on the 10 following grounds «1 His Honour the Trial Judge misdirected himself as to the true facts andcircumstancesof thecase before himandreachedthe wrong conclusion upon a misreading and/or misconstruction of the ratiodecidendi of Kantklides ν TheRepublic,2RS CC 15 49,Ptkisν Republic
(1967)3 C LR 562. andPikisν Republic
(1968)3CLR 303andtheothercasescitedbyhim 20 25 30 2 The tnal Judge misdirected himself as to theweight and effect of the evidence before htm and/or failed to appreciate and evaluate such evidence properly, drawing unwarranted inferences and conclusions therefrom 3 His Honour's conclusion is based upon a misreading of the irrelevant provisions of section 38 of the Villages (Administration and Improvement) Law Cap 243, which provides for the nghts of the Acquinng Authonty in respect of land in excess of the extent actually required and has no application whatsoever in the present case where the whole property has not been used for the purpose it had been abandoned 4 HisHonour'sdecision and/orJudgment iscontrarytothe basic notionsof justice and istantamounttoanauthonsationand/or blessingof self-admitted and confessed mal-administratton. 655 A. Loizou J. HadjILolzou v. Impr. Board Ay. Dhometios
(1987)5. His Honour's construction of Article 23
(5)of the Constitution and Section 23
(2)of Law No.15 of 1962 is based upon the arbitrary limitation of the aforesaid Constitutional and legal provisions to the period after 16.8.1960 and is. as such. untenableandwrong.» Taking now ground 1 of the grounds of appeal, as already stated, thelearned trialJudge inholdingashedid relied mainlyon the judgment of the Full Bench of the Court of Appeal in Pikis v. The Republic
(1968)3 C.L.R.303 and need, therefore, arises to refertotherelevantpassageatp.307ofthereportinthePikiscase: JO «The claim is based, as already stated, on the provisions of section 13of the Land Acquisition Law(nowCap.226.inthe 1959-Edition-oftheCyprusStatutes)asitstoodatthetimeof theclaiminApril 1961.Theprovisionsinthissectionwerefirst introduced intheLandAcquisitionLawonthe7thNovember. 15 1952,asan amendment byLawNo.26of 1952.Itiscommon groundthat,butforthisamendment,suchaclaimcouldnotbe made;andnosuchrightcouldbesaidtoexist. It is the case for the Appellant that the effect of the amendment in question, was to create the right claimed, by 20 virtue of which, the Appellant seeks the relief pursued bythis recourse.Learnedcounselonhisbehalfbasedhisclient'sclaim onthewordingofthesection,particularlythewords'...theland had been acquired' inline8;andsubmitted thattheAppellant wasentitled toclaimthatpropertywhich 'had been acquired' 25 undertheLandAcquisition Law,andwasnotactuallyused for the purposes of the original public utility project, be offered bact to him as the expropriate owner, as provided in section i 3 after theamendment inNovember
- Iam clearly of opinion that itwasneither the intention of the 30 legislatorinenactingtheamendment introducedbyLaw26of 1952, noris itthe effect of the amendment to create such a right in connection with expropriations effected priorto the amendment. Had the legislator intended such a result, he would have used language to that effect. In my opinion the 35 rightsof the parties herein crystallized at the time of the 656 5 3 C.L.R. HadjILolzou v. Impr. Board Ay. Dhometios 5 10 15 20 25 30 A. Loizou J. expropnation on May 7, 1952, when Notification 188 was published in the Official Gazette This, I think, is quite sufficient to dispose of the application on its ments And1 therefore, find it unnecessary to enter into the other matters raised inthisappeal andfor thatmatter intotheotherreasons on which the trial Judge founded his decision So long asI hold theview thatnosuch a right existed inNovember 1952 when Law 26of1952 introducedsection 13initspresent form and no such a right was created by the section in respect of earlier expropriations, Iam of the opinion that the recourse mustfail » In the light of thestatement of the law in the Pikis case(supra), the conclusion of the learned tnal Judge that the «nght of the parties crystallized on the date of the publication on 22nd July 1954»andthattheLaw applicable istheLaw obtaining atthetime of thecrystallization of therights of theparties on22nd July 1954, ι e section 38 of Cap 243, cannot be faulted and, therefore, the ground of appeal - ground 1 - thatthe trialJudge misread the relevant case-law cannotbe sustained Coming now toground 2,we are of opinion thatthe inferences and conclusions which the learned tnal Judge drew from the evidence were clearly open to him on the evidence before him and therefore thisground fails Ground3, relating as itdoes totheconstructionof section 38 of theLaw,Cap 243,needanses toquoteheresection38,itreads «
- Any Board may, with the consent of the Administrative Secretary, sell, lease or exchange any immovable property compulsonly acquired under the provisions of this Law in excess of the extent actually required for the purposes in respect of which ithas been acquired Provided that the person from whom the immovable propertywas acquiredshall have thenghttopreemptionatthe pnceatwhichitwas acquiredfrom himbytheBoardor,ifonlya portion of such immovable property is in excess of 657 A. Loizou J. HadjILolzou v. Impr. Board Ay. Dhometios
(1987)requirements, at a price proportionate to that at which the whole was acquired from him.» Itisclear from a mere reading of the enacting part ofsection 38 that it refers to sale, lease or exchange of property compulsorily acquired «inexcessoftheextentactuallyrequired forthepurposes 5 in respect of which it has been acquired». And such being the wording of the enacting part ground 3 would have been validbut for the proviso; And having regard tothe wording of the proviso. particularly «or, ifonly a portion of such immovable property isin excessofsuchrequirement»,Iholdthatit,also,coverscaseswhere 10 the whole of the property has not been used as isthe case here. Need, therefore, arises toconsiderthe effect ofthe provisoand at thattheprinciplesgoverningtheconstruction ofprovisos. InPASYDY and Others v. TheMunicipalityofNicosia
(1978)3 C L.R. 117TriantafyllidesP.,saidatpp. 138-139: «Another argument which has been advanced bycounsel for theapplicantsisthattheatpresent inforceparagraph (c)ofthe proviso to subsection
(1)of section 157 constitutes a 'repugnant proviso* because though -allegedly - the public officers are notworkingforprofit itisexpresslyprovidedinthe 20 relevant legislation, particularly in section 156, that the professional tax is imposed in relation to the carrying on practice or exercise of any business, trade, calling or profession 'for profit'». In Halsbury's Laws of England, 3rd ed., vol. 36, p.400, para 25 604, it is stated that it is the substance, and not the form, of a legislative enactment that must be looked at, and that which isin form a proviso may be insubstance a fresh enactment, adding to. andnotmerelyqualifying, thatwhichgoesbefore it,and reference is made, in this respect, to Rhondda UrbanCouncil v. TaffVale 30 Rail Co., [1909] A.C. 253, 258, which has been followed in Commissioner of Stamp Duties v.Atwilland others, [1973] 1 All E.R.576,581. I am of the view that in the present case, when the aforementioned paragraph (c)islookedatagainstthebackground 35 of the legislation concerned, itisproper to conclude that itisnot 658 15 3 C.L.R. HadjILolzou v. Impr. Board Ay. Dhometios 5 A. Loizou J. in substance a mere proviso, but that it is a provision extending and supplementing the main part of section 157 of Cap. 240 in whichitistobefound. But.even ifitweretobeheldthatitisamere proviso,Iwouldnottreatitasa'repugnantproviso',becauseIamof theviewthatpublicofficers do,indeed, workforprofit inthesense ofsection 156above.». Further in Georghiades v. Republic
(1969)3 C L.R. 396 Tnantafyllides, J., as he then was, said the following at pp. 406407: 10 15 20 25 «Inconstruingaproviso itmust be borne inmind that itprima facie exempts out of the previous enacting part of a statute something which but forthe proviso would have been within the enacting part (see, inter alia, the judgments of Lush,J. in Mullins v. The Treasurerof the County of Surrey [1880] 5 O.B.D. 170, at p.173, of Kekewich, J., in Duncan v. Dixon [1890344 Ch.D.211,atp.215,of Lord Macnaghten in Local Government Boardv.South Stoneham Union[1909]A,C.57. at pp. 62-63, and of Lord Macmillan in Corporation of the City of Toronto v.Attorney-General forCanada [1964] A.C. 32, atp.37);furthermore, itisa basic cannon of construction of statutes applicable in cases of provisos, too, that a statute must,sofaraspossible,beconstrued asawholeinsuchaway as to give effect to all its parts (see, inter alia, the judgments of Lord Russel of Killowen and Lord Wright in Jennings v.Kelly[1940]A.C.206 at pp. 220 and 227)». Applying the above principlestothe construction ofsection 38 and its proviso I hold that the proviso in question «is not in substance a mere proviso but that itisa provision extending and supplementing the main part of section 38». In view of this 30 conclusion and the aforesaid construction I have given to the proviso, namely that it covers instances where the whole of the property required was not used, I hold that ground 3 isdevoidof any merit whatsoever. Regarding ground 5 - same as in ground 1, the learned tnal 35 Judge drew his conclusion by relying mainly on the judgment of the hull Bench inthe Pikiscase (supra) and having regard to the statement of the Law in the Pikiscase Icannot but hold that the 659 S o w l d e * J. HadjILolzou v. Impr. Board Ay. Dhometios
(1987)conclusionsof the learned tnalJudge regarding thisground5,are valid Lastly coming to ground 4. once we have held that the trial Judge hasneithermisread therelevantcase-law-ground 1-norhas he misread section38 of Cap 243-ground 3-or Article 23
(5)of the 5 Constitution and section 23
(2)of Law 15/62 we are entitled to hold thatthe ground of appeal -4-to the effect thatthe judgment appealed against is «contrary to the basic notions of justice » remainswithoutanylegalfoundationwhatsoever anditmustfail Intheresult I would dismiss theappeal butinthecircumstances 10 there would be no orderas tocosts TRIANTAFYLLIDES Ρ I agree with the judgment just delivered by my brotherJudge Mr Justice A Loizou and I donot wishtoaddanything SAWIDES J Thisisanappeal against thejudgmentofaJudge 15 of this Court exercising revisional junsdiction in the first instance by means of which he dismissed the recourse of the appellants against the refusal of the respondents to offer back tothemtheir property which was compulsonly acquired in 1954 The facts of the case have already been lucidly narratedby my 20 brother Judge A. Loizou inthejudgmentjust delivered and Ifind itunnecessary to repeat themonce again The mainissue which thelearned tnalJudge hadtodecide was whether the refusal of the respondents to offer back to the appellants for purchase property acquired from them in 1954 is 25 illegalinviewof theobligations castontheAcquinng Authonty by section 13 of Cap 226 and section 23
(2)of the Compulsory Acquisition Law 15/62 The attention of the tnal Judge was focussed to the following four pointsof law which were raised before him 30
(1)thelaw applicable tothe case,
(2)whether the respondentBoard had a discretionand/or an obligation tooffer back thelandtoits owners, 660 3 C,LB- HadjILolzou v. Impr. Board Ay. Dhometios Snwltjp*<J.
(3)what were therightsof the appellants under section 13 ofthe Land Acquisition Law,Cap.226inviewofthe lapseof more than ten years from the date of the acquisition till the date ofthealleged abandonment, and 5
(4)whether the act challenged was an executory administrative act. The learned trial Judge after an elaborate exposition on the lawrelevanttothecase,disposedofthefourquestionsbefore him as follows (see HjiLoizouand Othersv.Republic
(1984)3 C.L.R. 10 70atp.$3): On question 1 he concluded that «the Law applicable to the present case is neither Article 23.5 of the Constitution nor the Compulsory Acquisition Law, Cap. 226, norLawNo 15/62.The Law applicable is the Law obtaining at the time of the 15 crystallization oftherightsoftheparties,on22.7.1954 i.e.s.37of Law No. 12/50, now s. 38 of the Villages (Administration and Improvement)Law,Cap.243,underwhichthelandwasacquired bythe respondent Board.» In dealing with question 2 he proceeded first to examine and 20 construe the proviso to section 38 of Cap. 243 which reads as follows: Provided that- 25 «The person from whom the immovable property was acquired shall have the right to pre-emption at the price at which it was acquired from him by the Board or, if qnly a portion of such immovable property is in excess of requirements, at a price proportionate to that at which the wholewasacquired from him.» The learned trial Judge in dealing with the arguments of 30 counsel of the parties before him on the construction Qt such proviso,concluded asfollows, atp.85: 35 «In |, 38 'may' is clearly permissive. It gives a permissive power to the Board, subject to the consent of th§ Administrative Secretary (now the Minister of the Interior Article 188.3(c)oftheConstitution),todealwiththe question ofcompulsorilyacquiredimmovablepropertyinexcessofthe 661 Snvvltlcs J. HadjILolzou v. Impr. Board Ay. Dhometios
(1987)extentactuallyrequired forthepurposesinrespectofwhichit had been acquired inthreedifferent ways eithertosell, lease orexchange 'May' cannotbeinterpreted asmandatoryinthe context of this section Itdoes not impose any obligation on the Board If an imperative meaning is attributed to 'may' 5 then what would be expected from the Board to do as the three powers are completely different in nature The proviso isonlyapplicable whentheBoard exercisesitspowertosell It theydecidetosell,thentheownershavearightof pre-emption The property hastobeoffered tothem atthepnce atwhich it 10 wasacquired from them,givethemtherightoffirstrefusal and then sell to somebody else If the Board does not decide to sell, then the proviso is inapplicable The word 'may' ^ distinctly a word of permission only, it is an enabling and empowering word The Board has a discretion but no 15 obligation to sell» The learned tnal Judge then dealt with the third question He considered the provisions of section 13
(2)(a) of the Land Acquisition Law, Cap 226and inparticular part (n)of paragraph (a)ofsub-section
(2)whichimposesatimelimitof 10yearsforthe 20 exercise of the nght of pre-emption and concluded that from the date of abandonment the nght of pre-emption of the owner can only be exercised if abandonment takes place before the expiration of 10yearsfrom thedate oftheacquisition Hesaid the following mthisrespect (p86) 25 «Inthiscase the respondent does not admit that the object has been abandoned The applicant's contention is that abandonment took place The time of abandonment, however, is long after the 10 years' penod prescnbed by section 13
(2)(a)(n) Therefore, even if this section were 30 applicable, the applicants are precluded by lapse of time to any nght on the subject property» Havingdealt withthe firstthree pointsof lawthat posed before him, the adjudication on which inthe opinion of the learned tnal Judge disposed of the subject matter of the recourse, he found it 35 unnecessary to embark on the 4th point of lawas towhether the letteroftherespondentdatedthe13thApnl,1982,whichwassent bythe Chairman of the respondent totheappellant'sadvocate to 662 3 C.L.R, HadjILolzou v. Impr. Board Ay. Dhometios Pikis J. the effect that the purpose for which the property was compulsorily acquired was never abandoned, was an executory administrative actor not. 5 I agreewiththejudgment ofmybrotherJudge A.Loizouinthis appeal, thatallgroundsofappeal advanced byappellants should fail and thatthisappeal should be dismissed. The reasons given by the learned trial Judge in his judgment which led him tohisdecision thatappellants' recourse should be dismissed areverysound and no ground hasbeen shown thathis 10 reasoning iswronginany respect. Ialsoagreewiththeapproach ofthelearnedtrialJudgeastothe order in which he dealt with the points of law presented before him.Very correctly, in myview, once by disposing the first three pointsoflaw,thesubstance ofthecasewasdisposedof, hedidnot 15 proceed todealwith thelastpointoflaw,which ifcounselwished and had requested the Court accordingly, it could be taken as a preliminary point oflaw. Ithas been normal practice inthisCourt when several issues are raised touching the validity of administrative act or a number of objections are raised in 20 opposition in support of the act or decision, if the Court after having dealt with one or more of such issues comes to the conclusion as to the fate of the recourse, it does not proceed to dealwith allremaining issues,the determination ofwhichwillnot add anythingtothe outcome of the recourse. 25 Bydealingwiththesubstanceofthecaseandadjudicating onit, the learned trial Judge has rendered useful guidance in the handling of other similarcases already pending before thisCourt and waitingtheresult ofthisappeal. The appeal isdismissed accordingly. 30 PIKIS J.: The appellants were the owners of a plot of aoproximately 2 1/2 donums at AyiosDhometios. The land was >.. mpulsorilyacquired in 1954bythe Improvement Boardof the areaforthepurpose ofprovidingfacilitiesfortheestablishmentof a market. It was contemplated that premises would be built to 663 P l U s J. HadjILolzou v. Impr. Board Ay. Dhometios
(1987)accommodate a number of shops within the same complex in order to provide a service needed in the locality The land was expropnated inexerciseofthepowersvested inthe Improvement Board by the Villages (Administration and Improvement) Law* empowenng them, inter alia, to build public buildings for the 5 provision of necessary amenities Failing agreement with the owners on the compensation payable, the matter was referred to the Compensation Assessment Tribunal, pursuant to the provisions of the Land Acquisition Law, Cap 226 The land vested and became eversmce the property ofthe respondents 10 The purpose for which the land was acquired was not implemented and the site remains vacant tillto-day For the past 21 or more years theappellants have been pressingforthe return of the site on the ground that the purpose for which the property was acquired was abandoned They claimed a nght to purchase 15 back the land founded on the provisions of s 13of Cap 226 read with the modifications necessary to bnng it into conformity with Art 235 of the Constitution (seeArt 188 1of the Constitution) Their request was refused in 1966on the qround that the project for which the land was acquired was not abandoned, informing 20 appellants it would be duly implemented when financial circumstances permitted So far as may be gathered from subsequent events, minutes of the proceedings of the Board and correspondence on the subject with departments of central government, the establishment of a market on the site was still 25 being studied Conflicting viewswere expressed on the need for additional market facilities in the area Applicants renewed their request for the return of the property The response of the Improvement Board was negative again In Apnl 1982 they refused the request informing the owners anew that plans for 30 building the market had not been abandoned, explaining the delay was due to lack of financial resources The review of this decision isthe subject-matter of the proceedings The refusal of the respondents to offer the property back to the applicants for purchase isquestioned as illegalinviewoftheobligationscaston 35 the AcquiringAuthonty bys 13,Cap 226 and those of s,23
(2)of the Compulsory Acquisition Law (15/62) *IncorporatedasCap 243 tnthe 1959Editionotthe CiiprusStatuteLaw 664 3 C.L.R. 5 HadjILolzou v. Impr. Board Ay. D h o m e t i o s Ptkls J. Before holding an inquiry on the merits of the complaint the learned trial Judge set down for preliminary determination the following four legal questions. Evidently he took the view they affected the foundation of the proceedings and were a proper subjectofpreliminaryexamination.Thefourquestionsaslistedby the trialCourtwere the following: «
(1)Lawapplicable tothe present case;
(2)Hasthe Boardadiscretion oranobligation tooffer back the land? 10 15
(3)Inviewofthelapseof morethan 10yearsfrom the date of acquisition tillthedate of the alleged abandonment, what are the rights of the applicants under s.13 of the Land Acquisition Law, Cap.226? And,
(4)Isthe act challenged an executory administrative act or a confirmatory one, and, therefore, the recourse is out of time?» The questions were answered in the order in which they had beenposed.TheCourtfound thatthelawdefining thedutiesofan Improvement Board with regard to the use and disposition of 20 propertyunusedforthepurposeforwhichitwasacquired,wass.38 oftheVillages(AdministrationandImprovement) Law,Cap.
- No obligation is imposed on the local authority to dispose of unused property or offer itback for purchase tothe owner. They. may, attheir discretion, sell,lease or exchange the property with 25 the approval of the Minister of Finance. Only inthe event of sale is a right of pre-emption conferred to the previous owner. Otherwise the Acquiring Authority is under no duty whatever totheformer owners.ThetrialCourtrejected thesuggestion that s.38 was impliedly repealed as an implication arising from the 30 enactment of s.13, Cap.
- Supposing s.13 didhave the effect attributedtoitbytheappellants,itwouldcarrytheircaseno further as the abandonment, if any, of the purpose for which the acquisition was effected took place more than 10 years after the dateoftheacquisition,afactmakinginapplicabletheprovisionsof 35 s. 13
(2),Cap.226.And,theCourtconcludedthatneitherlawgave theappellantsalegtostandonandforthatreasonthe proceeding wasill-founded. Beforeusitwasarguedthatthelawregulatingthe obligations of the respondents is s.13, Cap. 226. Asthe project was neither implemented nor abandoned before Independence 40 andthe question of abandonment arosethereafter, s.13hadtobe 665 Plkls J. HadjILolzou v. Impr. Board Ay. Dhometios .
(1987)applied subject to the provisions of Art. 23.5 imposing a positive dutyupon an AcquiringAuthority toreturn property within three years if the purpose for which it was acquired has not been attained; whereas the validity of the provisions of Cap. 226 was specifically saved bys.23
(2)of the Compulsory Acquisition Law. 1962 with regard toacquisition made under that law. 5 Inmyjudgment the first question that oughtto be answered is that listed under
(4)in the questionnaire raised for preliminary adjudication. The question raised affects the justiciability of the subject-matter of the recourse. The revisional jurisdiction of the 10 Supreme Court under Art. 146 is confined to the review of executoryonlyifitisdeterminative ofrightsandobligations under .Kiininistrative action independently of its character. An act is executoryonlyifitisdeterminativeofrightsandobligaitionsunder the law. It must of itself be genetic of rights or authority for the 15 imposition of obligations.Inorderfor an act ofthe administration to have those attributes the law must put it in the hands of the administration to issue a decision definitive of the rights and obligations of those affected thereby.Refusal, on theother hand, toperform adutyisnotofitselfproductiveoflegalconsequences. 20 Theomission continues foraslongasthe administrative authority fails to carry out its duties under the law. And this is of itself justiciableasa continuing omission Neithers.38ofCap.243ors.13ofCap.226oftheirownorread in conjunction with Art.23.5 ofthe Constitution make the return 25 of landunused forthepurposesofacquisition amatterofdecision for the Acquiring Authority. Under s.13, Cap. 226, if abandonment, objectively noticeable, occurs a corresponding dutyarisestoreturn it. Whatweareaskedtoexamineisconsequentlynotareviewable 30 act under Art. 146.
- and the recourse must, therefore, be dismissed.Theoretically thatdoesnotpreventtheappellants from launching a new recourse assuming their complaint is one of continuing omission toreturn abandoned property in accordance withs.13, Cap. 226 read subject toArt.23.5 oftheConstitution. 35 Judicial circumspection ordinarily restrainsjudgesfrom exploring 666 3 C.L.R. 5 HadjILolzou v. Impr. Board Ay. D h o m e t i o s Plkls J. matters notdirectly in issue. However, where the matter is proximatetothecauseunderreviewandthefacts relevant toitare before the Court, it is notinjudicial to venture an opinion especially if the matter is essentially one of law. As these prerequisites are present inthiscase, I shall recordmyopinionon the lawapplicable and contemplate the implications upon the facts of the case. The law regulating rights andobligations of the acquiring authority and theowner, after acquisition, in respect of land 1Q» acquired pursuant to the provisions of The Villages (AdministrationandImprovement)Law, Cap.243,iss.
- Itdeals specifically with thefate of property acquired by localauthorities; assuchitcanbe reconciledwiths.13of theLandAcquisition Law, Cap. 226, and the two may co-exist within the same legislative 15 framework. In the absence of specific language to that end, we cannotpresume thatthelegislature intendedtorepeals.38, Cap. 243, bythe enactmentofs.13, Cap.
- Repeal by necessary implication is an exceptional course not tobecountenanced unless thetwo enactments are irreconcilable (see, inter alia, 20 Stavrou andOthers v. Republic)*. There is still less roomfor inferring animplied repeal where the ambit of the first law is confined toaspecial area of the general subject dealtwithby the alleged repealing legislation (Vassiliko Cement Works Ltd. v. loannisLambrou Violaris)**. 25 In view of the above the appellants had no righttothe reacquisition of the property as s.38gave none; nor werethe respondentsunderanycorrespondingobligation.Therightsof the parties with regard to the property crystallized before Independence; assuch they remained wholly unaffected bythe 30 Constitution.Onlyunfledged rights intheprocessofcreation were liable to be affected by constitutional provisions***. Equally unreviewable under Art. 146is administrative action finalized before theConstitutioncame intoforce****. •I1986)3CLR 361 (F.B) "
(1975)1CLR 256 ·*" lason Kaniklidesν Republic.2RS C.C 49 " " Hasan Mouttafaν Republic. 1RSC.C 44 667 HadjILolzou v. Impr. Board Ay. Dhometios
(1987)Forthe reasons above indicated, the appeal fails. KOURRISJ.:Iagreewith theresultofthisappealforthereasons which have been setout inthejudgment of mybrotherJudgeMr. Justice Loizou. TRIANTAFYLLIDES P.: In the result this appeal is dismisseil unanimously butwith no orderastoitscosts. 5 Appeal dismissed. No orderasto costs. 668