(1987)1987February 27 (TRIANTAFYLUDES,P..MALACHTOS,SAWIDES,LOR1S,PIKIS,JJ.] THEREPUBLICOFCYPRUS, THROUGH THEMINISTEROFINTERIOR, Appellant, v. LOULLAVASSIADOU, Respondent. (RevisionalJurisdictionAppeal No. 602). RevislonalJurisdictionAppeal—Leavetowithdraw—DiscretionofCourt—In Aecircumstancesofthiscasetheleaveappliedforwasgranted. ConstitutionalLaw—Righttoproperty—Constitution, Art. 23
(8)(c)—Orderof requisition resulting inprolongation ofthethetotalperiod ofconsecutive requisitions ofthesame property for longer than threeyears —Whether 5 unconstitutional. Respondent'spropertywasrequisitionedforaperiodofoneyear{1.1.8531.1.86), but the relevant order was found by the Judge, who tried respondent'srecourse,tobeunconstitutional,asbeinginconsistentwithArt. 23.8(c)ofdieConstitution,inthatitresultedinprolongingthetotalperiodof 10 consecutiverequisitionsofthepropertyinquestionforlongerthantheperiod ofthreeyearsreferredtointhesaidArticle. The respondent in the recourse appealed. The appeal was heard and judgmentwasreserved. Afterthejudgmentwasreservedandafteradateforitsdeliverywasfixed, counselfortheappellantappliedforleavetowithdrawtheappeal. 15 Held,grantingleavetowithdrawtheappeal,Pikis,J.dissenting*:(A) Per Triantafyllides, P., Malachtos,J. concurring:.Thecorrectcourse istogrant leavetowithdrawtheappeal. (B)PerSawidesJ.:Bearinginmindthecircumstancesofthepresentcase, 20 thefactthattherespondentdidnotopposetheapplicationandalsothefact • Pikis, J. havingrefusedleave to withdrawtheappeal,deliveredaJudgmentonthemerits, dismissingtheappeal Triantatyilides, P.,withwhomMalachtos,J.concurred,andLorrts,J, expressed theirapprovaloftheJudgmentrelatingtotheunconstitutionalityofthesub/utfice OrderofRequisition 860 3 C.L.R. Republic v. Vassiadou that thewithdrawal of thepresentappealwill notactinanyway detrimental to the interestsof therespondentas thejudgmentof thetrial Courtafter the withrawal of theappealistoherbenefit andherclaimisfully satisfied bysuch judgment, leave should be grantedtotheappellanttowithdraw theappeal. 5 (C)Per Loris, J.: Undoubtedlythis Courthas a discretion with a view to allowing orrefusing thepresentapplicationfor thewithdrawal of thisappeal. The Deputy Attorney-General rightly applied for the withdrawal of the appeal. Inthecircumstancestheleave applied for should be granted. -Λ Leave to withdraw the appealgranted. £50 costsagainsttheappellant. Casesreferredto: ThePresident of the Republic v.Louca
(1984)3 C.L.R.241; Payiatasv. TheRepublic
(1984)3 C.L.R. 1239; Branco Salvage Ltd.v.Attorney-General(\961) 3 C.L.R.213. Application. Application for leave towithdraw anappeal from ajudgment of 15 aJudge oftheSupreme Courtof Cyprus (Kourris,J.)givenonthe 6th June, 1986 (Revisional Jurisdiction Case No. 456/85)* whereby appellant's decision to requisition respondent's immovable property for a period of one year was annulled. 20 L Loucaides, Deputy Attorney-General of the Republic, forthe appellant. No appearance for the respondent. Cur. adv. vult. The following decisions were read: TRIANTAFYLUDES P.: Counsel for the appellant has applied 25 for leave to withdraw this appeal and has already informed the Court, in writing, that there will be compliance with the first instance judgment, against which this appeal has been made, by returning to the respondent the property which is the subjectmatter of these proceedings. 30 The said property was requisitioned from 1 February 1985 till 31 January 1986 by means of an orderpublished (see No. 131)in theOfficial Gazetteon 1February 1985, butsuch orderwas found 'Reportedin
(1986)3CLR. 955. 861 TriantafyUldes P. Republic v. Vassladou
(1987)by the learned trial Judge to be uncostitutionalas being contrary to Article 23.8(
- c)of the Constitution, in that it resulted in prolonging the total period of consecutive requisitions of the property in question for longer than the period of three years which is envisaged as the maximum period of requisition by the 5 said Article 23.8(c). Ithinkthatthe appellant was well advised to apply for leaveto withdraw thisappeal because, having considered thiscase with a viewtogivingthejudgment which was reserved, I am of theview thattheinterpretationandapplicationtothiscase ofArticle 23.8(
- c)10 of the Constitutionwere correctly decided by the trial Judge. Iam of theopinionthatthecorrectcourse istograntleavetothe appellant to withdraw the present appeal and, in this respect, I regard the cases of ThePresidentof the Republic v. Louca,
(1984), 3C.L.R.241,andPayiatasv. The/?epub/ic,
(1984)3C.L.R. 1239, 15 as being, in any event, clearly distinguishable. I,also, thinkthatthereshould be made anorderof costs against theappellant which shouldbe for thesumof£50towards thecosts of the respondent. MALACHTOS, J.: Iagree with the judgment just delivered by 20 the FYesident of this Courtand I have nothing toadd. SAWIDES J.: The issue posing for consideration before us at thisstageof thepresentappeal iswhetherleaveshould be granted to the appellant to withdraw the appeal. The appeal is directed against the judgment of a Judge of this 25 Court in the exercise of the original jurisdiction of the Court whereby he accepted the recourse of the respondent,applicantin Case No. 456/85 before thetrial Courtand annulledthe decision of the appellant published in Supplement No. 3, Part II,of the official Gazette of the Republic of 1st February, 1985, under 30 Notification 131, whereby certain immovable property of the respondent was requisitioned for a period of one year. ThelearnedtrialJudge decidedthattheorderofrequisition was nvalid because, inthe circumstances and bearing inmindthe fact :hat the property of the respondent was continuously and 35 uninterrupted subject to requisition orders renewed annually as Vom 10thMarch, 1972, till 1stFebruary, 1985,which involvedthe equisirion of theproperty for aperiod exceeding threeyears, was jηconstitutional. As a result theappellant, respondentbefore the 862 3 C.L.H. Republic v.Vaesladoo S a w i d e e J. trial Court, filed the present appeal challenging the above decision. 5 The appeal was fully argued and itshearing was concluded on the 18th DecembWr, 1986, when judgment was reserved. The members of the Full Bench sitting inthe appeal had conferred as tothefateoftheappeal andtheappealwasfixedfordeliveryofthe reservedjudgment on the27th February, 1987. Before thedatefixed forthedeliveryofthejudgmentandinfact on 30th January, 1987, the Deputy Attorney-General who was 10 handling thisappeal onbehalf oftheappellant,applied inwriting, with notice to counsel for the respondent, for leave to withdraw the appeal. Such application was fixed for hearing on the 27th February, 1987,the date on whichthe reservedjudgment wasto be delivered. Counsel for the respondent did not oppose the 15 application, rightly so in my view, as by the withdrawal of the appeal the first instancejudgment of thetrialCourt would remain final as unchallenged. The question touching the power of this Court to allow the withdrawal of a Revisional Appeal has not been raised in this 20 appeal as counsel for the appellant made his application on the assumption thatsuch leave was necessary. Thequestion ofleaveforthewithdrawalofa RevisionalAppeal wasconsidered bythe FullBench inthecasesof ThePresidentof the Republic v. Louca and Others
(1984)3 C.L.R. 249 and Payiatas v. The Republic
(1984)3 C.L.R. 1239. Louca case is 25 distinguishable from thepresent one. Inthatcaseinthecourseof the hearing of the appeals and the cross-appeals and before the hearing was concluded counsel for the appellants and crossappellants informed the Court of their intention to abandon the appeals and the cross-appeals in view of an overall settlement 30 reached. Furthermore the two applicants, respondents in the appeals, stated in Court that they did not wish to pursue their recourse any further and asked for leave to withdraw same. Asa result a question arose as to whether leave from the Court was required for the withdrawal of theappeals,thecross-appeals and 35 the recourses.The majority ofthe Court (Pikis,J. dissenting) held thattherespondentswereentitledtowithdrawtheirrecoursesand theappellants and cross-appellantstowithdrawtheirappealsand cross-appeals as in view of the overall settlement of the claim of theapplicantsandtheacceptanceofsamebythem,theyhad been 40 deprived ofa legitimate interest topursue theirrecourses. 863 S a w t d e s J. Republic v.Vassladou
(1987)Payiatascase (supra) on the other hand, has no relation at all with the present case asinthat case the appellant insisted tohave his appeal decided notwithstanding the revocation of the administrative decision in the meantime, prior to the pronouncement of the judgment, as he wanted his legal rights 5 arising out of the termination of hisinterdiction preserved. Bearing inmind the circumstances of the present case, the fact that the respondent did not oppose the application and also the fact that the withdrawal of the present appeal will not act in any waydetrimentaltotheinterestsoftherespondent, asthejudgment 10 ofthetrialCourtafter thewithdrawaloftheappealistoher benefit and her claim isfully satisfied by such judgment, Ifind that leave shouldbegrantedtotheappellanttowithdrawtheappeal.Inview ofsuch course Iconsider itunnecessarytogointothemeritsofthe case and express any opinion on the matter. I agree that the sum 15 of £50. -costsshould be awarded in favour ofthe respondent. LORIS J: Undoubtedly we have a discretion with a view to allowing or refusing the application for the withdrawal of the present appeal. I had the opportunity to consider at an erlier stage, after the 20 judgment in the present appeal was reserved, with the learned president and thelearned Membersof thisCourt, themeritsofthe present appeal, and Imust say that Iagree with the construction placed by the learned Trial Judge on Article 23.8(c) of the Constitution; inthe circumstances 1holdtheviewthatthe learned 25 Deputy Attorney-General rightly applied for the withdrawal of the present appeal and Iconsider that thisisa proper instance to exercise our discretion in favour of the applicant-appellant; I would therefore allowthe appellant towithdrawpresent appeal. Once the cases of The Republic v. Louca and others
(1984)3 30 C.L.R. 241 and Payiatas v. The Republic
(1984)3 C.L.R. 1239 have been referred tous indealing withthepresent application,I wishtomakeitclearthatIconsiderthov.^<;<?sdistinguishable and I would even go further and say that Payiatas' case (Supra) is absolutely unconnected with the issue raised in the present 35 application for leavetowithdrawthepresent appeal;Payiataswas the appellant intheaforesaid caseandinsistedonappeal, through counsel, to have a judicial pronouncement on his appeal notwithstanding the revocation of the administrative decision in 864 3 C.L.R. Republic v. Vaseiadou LorisJ. thv meantime priortothepronouncement ofthejudgmentinthat appeal. Inthe resultI wouldallowtheapplication for leave towithdraw present appeal and Iam in agreement with the amount of costs 5 referred to by the learned President of thisCourt i.t. £50. -to be adjuHnyd infavour ofthe respondents. 10 15 20 25 PihiS.: Formypart1amunabletoupholdtheapplication made on behalf of the appellants for leave towithdraw the appeal. The appeal raises a question of great constitutional importance affecting theinterpretation andapplication ofarticle23.8(c)ofthe Constitution which provides that property may be requisitioned «for a period not exceeding three years». The property of the respondent (applicantbefore thetrialCourt)wascontinuously and uninterruptedly requisitioned between 10/3/72 and 1/2/85 by successiveyearlyordersrenewing requisition oftheproperty.The legality of the last order was challenged and Kourris.J., decided thattheorderwasinvalidbecause itinvolvedtherequisition ofthe property for a period exceeding three years and as such was unconstitutional. Inthe judgment of the trial Court the aim of the constitutional legislator to limit requisition of the property for a maximum period ofthreeyears,wouldbedefeated ifbyaprocess of prolongation requisition was allowed to run beyond three years. Allowing the prolongation of requisition orders for longer than three years would, according to the learned trial Judge. provide an avenue for frustrating the explicit intention of the constitutional legislatortodisallowdeprivation ofproperty except through acquisition and subject tothe safeguards associated with such measure. Mr.Loucaides disputed onappeal the interpretation placed by 30 the trial Court on the provisions of article 23.8(c) and argued that the object istoprohibitthe requisition ofpropertyatanyonetime for aperiod longerthan threeyearsand thatthere isno constraint as such upon amenity to prolong in a proper case the period of requisition for more than three years. Mr. Loucaides, in seeking 35 leaveto withdrawthe appeal, informed usthat while he came to agreethatinthecircumstancesofthiscasetheprolongation ofthe requisition order contravened the provisionsof article 23.8(c).he could notacceptthatrequisition of property for longer thanthree years is, underanycircumstances, unconstitutional for breachof 40 the provisions of article 23.8(c). And he submitted no useful purposewouldbeservedbyallowingtheappeal tocontinue toa 865 LorisJ. Republic v. Vassladou
(1987)conclusive end.Buthewasnotprepared to make anybinding statement on behalf of the Republic that article 23.8(c) ofthe Constitution prohibited the requisition of property, under any circumstances, foraperiod exceedingthree years. The hearing of the appeal was concluded on 18/12/86, 5 following which weheldaconference, reached our decisionand appointed the27th February, 1987,asthedate forthe deliveryof judgment. An appeal cannot be withdrawn as of right, a fact acknowledged byMr.Loucaides. Indeed, this is,asI perceiveit, theviewofallMembersoftheCourt.Thewithdrawalofanappeal 10 bythe appellant isgoverned bythe provisionsofOrd.35.r.29
(3)of theCivil Procedure Rules, made applicable toappeals taken under s. 11
(2)of the Administration of Justice (Miscellaneous Provisions) Law*bythe Supreme Court (Revisional Jurisdiction Appeal)Rules 1964**. 15 The discretion of the Court must no doubt be exercised judicially byreference tothefacts ofthe case and with aviewto promotingthe ends ofjustice.Unlikecivilproceedings, interestin the outcome of proceedings ofjudicial review of administrative action, isnot confined tothe partiesimmediately connected with 20 litigation or anyone of them in particular. Judicial review of administrative action isprimarily concerned with sustainanceof legalityinthe domainofpublic law. In civil litigation the judicial process is the forum for the resolution oflegal disputes.The elicitation ofthe law isprimarily 25 intended to establish the basis for the solution of the dispute. Judicial review of administrative action on the other hand, provides theforum forthescrutiny of legality inthedomainof publiclaw.Therefore, theelicitationanddeclaration ofthelaware not merely intended toestablish the basis for the solution ofany 30 dispute between parties to the proceedings but further aimto establish the framework within which the Administration must operate. AsIcanjudicially notice from numerous orders in the official gazette, requisition ordersare often prolonged for periods exceeding three years. Consequently, it is of the greatest 35 importance that thelawin this area be authoritatively declared from thehighestjudicialAuthority,theFullBench ofthe Supreme Court.Theimportanceofprovidinganauthentic interpretationof 'Law 33/64. **See. BrancoSalvageLtd. v.Attorney-General
(1967)3 C.LR. 213. 866 3 C.L.R. Republic v. Vassladou Loris J . constitutional provisions affecting fundamental rights, cannot be overstated. Itisalegitimateconsiderationtobetaken intoaccount in exercising my discretion to grant or withhold leave. Itisin the interestof administrative justicethatthejudicialprocessshouldin 5 thiscase be allowed torun itscourse. In gniving atthisconclusionIam reinforced bythe decisionof the Full Bench in Payiatasv. Republic* where the Full Bench refused leave to withdraw an appeal notwithstanding the revocation oftheimpugned administrative act.Theonlyoccasion 10 when the discretion of the Court is sapped, according to the majority decision in Republic v. Louca and Others**, iswhen the applicant abandons his recourse for review of the action complained of; removing thereby the substratum of judicial proceedings. 15 Having refused leave Imust proceed to passjudgment on the issues raised in this appeal. I confine my judgment to pronouncing on the constitutionality of the prolongation of the order of requisition by reference to the provisions of article 23.8(
- c)oftheConstitution. Inplain language itislaiddown inthe 20 Constitution that nopropertycanberequisitioned forlongerthan threeyears. Faced with such clearand unambiguous language,it would be wholly unprofitable to attempt by any process of interpretation to extract itsmeaning. Article 23.8(
- c)prohibits the requisition ofpropertyforanygivenpurpose andunder whatever 25 guise for longer than three years. If the Acquiring Authority has need of the property for a longer period, they must resort to compulsory acquisition. As the learned trial Judge rightly observed, with respect, prolongation of the period of requisition beyond three years would inevitably lead tothe improvisation of 30 a substitute for compulsory acquisition in defiance to the provisions of article 23 of the Constitution viewed as a whole.I would,therefore, dismissthe appeal. Thisbeingmydecision,Ifinditunnecessary todebateanyother aspectoftheappeal except notethattheremaininggroundsupon 35 which the sub judice decision was annulled do not prompt my immediate concurrence. *
(1984)3C.LR.1239 "
(1984)3CLR241. Leave to withdraw appeal granted with£50.=co$t$against appellant. 867