(1987)1987June 4 [TRIANTAFYLLIDES. k , MALACHTOS SAWIDES STYUANIDES, LOWS, KOURR1S PIK1S,JJ ) INTHE MATTER OF ARTICLE 146 OFTHE CONSTTTUTION, ANDREASGEORGHIOU AND OTHERS, Applicants, ν THE REPUBLICOFCYPRUS, THROUGH THE PUBLICSERVICECOMMISSION, Respondent (CasesNos 36/86, 123/86,158/86) Revisional Jurisdiction —Recourse forannulment — TheFullBench of thisCourt isnever divested of theJunsdicbonto deal directlyandfinallywitharecourse — Question whether the FullBench can,upon beingmoved bytheJudgeto whom a recourse had been assigned, take over the proceedings for continuation detemnned mtheaffirmative— TheAdministration ofJustice (Miscellaneous Provisions)Law 33/64,section 11
(1)and
(2)5 Mr Justice Koums,before whomtheproceedings inthese recourses have been taking place,proposed totheSupreme Courtthat,inviewofa senous constitutional issue, which arose fordetermination, the proceedings should be takenover from now onwards bytheFullBenchofthisCourt 10 As aresult the Courtfixed aheanngofthepreliminary issue regarding the possibility ofsuch cases being taken up,at this stage, bythe FullBenchfor further proceedings leading uptotheirdetermination Held, Pikis,J dissenting
(1)Inthe light ofthe wording ofsubsections
(1)and
(2)of section 11of Law 33/64 and the case lawthe FullBenchofthis 1 5 Court isnever divested oftheJurisdiction to deal directly and finally witha recourse for annulment, ifitso decides Ifaparticularrecourse istakeninthe first instanceby aJudge ofthisCourt,theFullBenchcan,onbeing moved by him, take over theproceedings, because thejurisdiction under Art 146 remainsvested always intheFullBench 20
(2)The decision, which the Supreme Court, asacollective administrative organ,tookon6864,thatanyJudgeoftheSupremeCourtsittingalonemay exercise original orrevisional Junsdicbon, can bedeparted from bya new decision oftheFullBench inrelationtoaparticular case
(3)Panayiotides ν The Republic
(1984)3 C LR 1271 isdistinguishable 980 25 3C.L.R. Georghlou&Othersv. Republic from thiscase;however, itsreasoning insofarasitexcludesthe FullBench from deciding totakeover forcontinuation theproceedings inany recourse cannotbe endorsed.
(4)It follows that the Full Bench is entitled to decide to take over the proceedings intheserecourses. 5 Orderaccordingly. Casesreferredto: Republicv.Vassiliades
(1967)3C.L.R. 82; Stokkos v.TheRepublic
(1982)3 C.L.R.1110; 10 ThePresidentoftheRepublic v.Louca
(1984)3C.L.R. 241; Papaleontiouv.Karageorghis
(1986)3C.L.R.1238; Panayiotidesv.TheRepublic
(1984)3C.L.R.1271; TheBoardforRegistrationotArchitectsandCivilEngineers v.Kyriskidss
(1966)3C.LR. 640; 15 Josephin v.Republic
(1986)3C.LR. I l l ; Attorney-Generalv. IbrahimandOthers,1964C.L.R.195; i Aloupasv.NationalBank ofGreece(1983}1C.L.R. 55; ApostolidesandOthersv.Republic
(1982)3C.L.R.928; Republicv.Vassiliades
(1967)3C.L.R. 82; 20 RoussosandAnother v.TheRepublic
(1985)3 C.LR. 119; BrancoSalvageLtd.v. TheRepublic
(1967)3 C.L.R. 213; Georghiouv.Republic
(1968)1C.L.R. 411; 25 HadjiSawasv. TheRepublic
(1986)2C.LR. 154. Preliminaryissue. Preliminary issue as to whether these recourses, against the appointment of the interested party to the post of Chief Land Officer andhisactingappointmenttothepostof Directorofthe 30 Department of Lands and Surveys, can be heard from now 981 GeorshionAOthervv.Republic
(1987)onwards by the Full Bench of the Court instead of bythe Judge before whom theproceedings havebeen takingplace untilnow. K.Talarides, forapplicant inCaseNo.36/
- N.Zomenis, for applicant inCaseNo. 123/
- C.Loizou, for applicant inCase No. 158/
- 5 N. Charalambous, Senior Counsel of the Republic with P. HadjiDemehiou, forthe respondent. A. S. Angelides, for the interested party. Cur.adv. vult. The following decisionswereread: 10 TR1ANTAFYLLIDES P.: In relation to the present three recourses, under Article 146 of the Constitution, counsel for the partieshavebeen heard onthepreliminaryissueofwhether these cases can be heard from now onwards by the Full Bench of the Court, instead of by the Judge of the Court before whom the 15 proceedings have been takingplace untilnow. By means of all these recourses there is challenged the appointment, by the respondent Public Service Commission, of the interested party A.Kotsonistothepost ofChief Land Officer; and by recourses 38/86 and 158/86 there ischallenged also his 20 acting appointment to the post of Director of the Department of Lands and Surveys. These three cases were, initially, in accordance withexistingarrangements,placed before Mr.Justice Kourrisand written addresses ofcounsel were prepared and filed in allof them pursuant todirectionsgivenbyhim. 25 Then, Mr. Justice Kourris, in view of a serious constitutional issuehavingbeen raised inthese cases,namely thevalidityof the constitution of the respondent Public Service Commission, proposed to the Supreme Court that they should be taken from now onwards by the Full Bench of the Court; and itwas decided 30 tofixthem forhearing onthepreliminarylegalissueregardingthe possibility of such cases being taken up, at thisstage,bythe Full Courtfor further proceedings leadinguptotheir determination. Bysection 9(a) of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64), the competence of the 35 Supreme Constitutional Court, including the jurisdiction under Article 146oftheConstitution,wasvestedinthisSupreme Court; 982 3 C.L.R. Georghiou& Othersv. Republic Triantefyllldes P. and by virtue of section 11
(1)of the same Law the jurisdiction underArticle 146 oftheConstitutionisto beexercised by theFull Benchof theCourtsubject totheprovisions ofsubsections
(2)and
(3)of section 11 and of any Rules of Court to be made by the 5 Supreme Court.Subsection
(2)of section 11 provides, in effect that the first instance jurisdiction of the Supreme Court in a recourse may be exercised («δύναταινα ασκηθεί») by a Judge or Judges of the Court as the Court may decide («ως ήθελε το Δικαστήριο αποφασίσει») andthatthefirstinstancejudgment is 10 subject to appeal. The nature of these two-tier jurisdiction created by virtue of subsection
(2)of Section 11 of Law 33/64 has been explained in, interalia, TheRepublicv. Vassiliades,
(1967)3C.L.R.82,87,100, 101,Stokkos v.TheRepublic,
(1982)3 C.L.R. 1110,1116,1117, 15 ThePresidentof the Republic v. Louca,
(1984)3 C.L.R. 241,263, 264 and Papaleontiou v. Karageorghis
(1986)3 C.L.R. 1238, 1240,1241. Inthelight of thewording ofsubsections
(1)and
(2)ofsection 11 of Law 33/64 and of the aforementioned case-law we are of the 20 opinion thatthe Full Bench of the Court is never divested of the jurisdiction todealdirectlyandfinally witharecourse under Article 146 of the Constitution, if it so decides; and that if a particular recourse is taken inthefirstinstance by a Judge of the Courtthe FullBenchof theCourtcan,onbeing moved by him,takeitup for 25 further proceedings, because thejurisdiction underArticle 146 of the Constitution remains vested always in the Full Bench of the Court arid a recourse istaken inthefirstinstance by aJudge only if assigned tohimby theCourt. Itiscorrectthatby meansofadecision,on6August1964, ofthe 30 Supreme Court, as a collective administrative organ, there has been decided that any one Judge of the Courtsitting alone may exercise original or revisional jurisdiction, but this is a decision which can be departed from by a new decision of the FullBench oftheCourtinrelationtoanyparticularcase orcases; andthishas, 35 actually, been doneinthepast, by way of established practice,on more than one occasion when cases in which similar legal issues were raised, and the determination of which by the Full bench withouttheintervention of afirst instancejudgment seemed to be appropriate, were taken up by the Full Bench at stages prior to 40 theirhearing andfinaldetermination. 983 Triantafyrllldes P. Georghiou&Othersv.Republic
(1987)OurattentionwasdrawntothejudgmentofourbrotherJudge Mr.JusticePikisinPanayiotidesv.TheRepublic,
(1984)3C.L.R. 1271, by which he refused to divest himself of first instance jurisdictioninrecourse underArticle146oftheConstitutionand remitittotheFullBenchoftheCourtforfurtherproceedings.We 5 do think that the present cases and the Panayiotides case are distinguishable as they involved different juridical situations;but we cannot endorse the reasoning of the judgment in the PanayiotidescasetotheextenttowhichitexcludestheFullBench of theCourtfrom decidingtotakeover,atanappropriatestage, 10 forfurther continuationanddetennination anyrecoursepending before aJudgeoftheCourt. Foralltheforegoing reasonswefindthattheFullBenchofthe Courtisentitledtodecidetotakeuptheproceedingsinthesethree recoursesand pursuethem totheirdetermination;andweorder 15 accordingly. PIKISJ.:ThecompetenceoftheplenumoftheSupremeCourt to assume the exercise of original jurisdiction and try an application for judicial review assigned to one of its members (Kounis, J.), pursuant to the provisions of s. 11
(2)of the 20 Administration of Justice (Miscellaneous Provisions) Law 1964 (33/64), is the pertinent issue before us. Specifically, we are requiredtodecidewhetherjurisdictionvestsintheFullBench,the forum of plenary jurisdiction of the Supreme Court, to assume ab initio the trial and resolution of three recourses referred to 25 Kourris, J., under and in accordance with the provisions of s. 11
(2).Thisisthebroaderquestionthatwascanvassedbeforeus, though the immediate one that must necessarily be answeredis whether itisatallcompetent fortheFullBench totakeoverthe hearingofthethreerecoursesfrom theJudgetowhomthecases 30 wereassignedafter heembarkedonaninquiryintothesubjudice decision;infact, after theCourtwasaddressed onthemeritsand legal issues arisingin the case.At that stage the learned Judge referred themattertotheSupremeCourtandwe,inturn,invited submissionsfromallpartiesinordertodecidewhetherjurisdiction 35 resideswiththeFullBenchtoassumeabinitiothetrialofthethree recoursesafter thecommencement ofthehearingbeforeasingle member of the Court as indicated above. Our brother Judge thought fit to raise the matter inview of the importance of the constitutionalissueraisedintheaddressesofcounselpertainingto 40 theconstitutionalityoftheprovisionsofPublicServiceLaw(Law 984 3C.LR. Georghlou&Othersv.Republic PiklsJ. 33/67) governing the composition and tenns of service of the Public Service Commission. On the other hand, the constitutionalityofLaw33/67isnottheonlygrounduponwhich the validity of the decision to promote the interested party, 5 Andreas Kotsonis, to the post of First Lands Officer in the Department of LandsandSurveysischallenged.Thevalidityof the decision isquestioned on avariety of grounds affecting the meritsandqualifications ofthecandidateseligibleforpromotion. Therefore, itisnot inevitable that the Courtwillhave togointo 10 thequestionofconstitutionalityofthepertinentprovisionsofLaw 33/67foritissettledonauthoritythatquestionsofconstitutionality should not be gone into unless necessary as a matter of logical sequenceforthedeterminationofmattersinissue*.Thoughitcan bearguedthatwhere,asinthiscase,theissueofconstitutionality 15 goes to the root of the decision, the Court may proceed to pronounce upon itintheinterestof legalitytherebydefining the framework withinwhichtheadministration mayoperate. Determination ofthecompetenceoftheFullBenchtoexercise originaljurisdictioninrespectofthecausesspecifiedinsubsection 2Q 2ofs.11,rumssolelyontheinterpretation oftheprovisionsofs. 11, particularly those of subsections 1 and 2. In theAttorneyGeneralof the Republicv. Mustafa Ibrahim and Others** the Supreme Court found Law 33/64 and the establishment of the Supreme Court envisaged thereby, a measure justified by the 25 necessitytofilltheconstitutionalgapleftbythecollapseofthetwo superior Courtsset upunder the Constitution resultingfrom the departureofthetwonon-CypriotmembersofthesuperiorCourts. Insubsequentdecision,Aloupasv.NationalBankofGreece,***it was emphasized that the law of necessity is not intended to o n supplant constitutional order buttounderpin itwhen threatened withcollapseandtherebysavetheedificeofthelawandultimately constitutional order****. Preliminary to answering the immediate question before us, we must cite Republicv. Christakis Vassiliades***** that directly upholds the proposition, oc echoed earlier in the case of Ibrahim (supra), that though the SupremeCourtbecametherepositoryofthejurisdictionformerly *The Board forRegistration of Architects and CivtlEngineersv. Chnstodoulos Kyriakides
(1966)3C.LR. 640.Josephin v.Republic
(1986)3C.LR.
- " 1964C.L.R.
- •••
(1983)1 C.LR. 55. ·'·* See, alsccApostolldes&Othersv.Republic
(1982)3 C.LR. 928, 945. ·—·
(1967)3 C.LR. 82(FB). 985 PtUsJ. Georgfaioa& Othersv.Republic
(1987)vested inthe Supreme Constitutional Court and the High Court, its exercise is regulated by the provisions of the law that made provision foritsestablishment, that is,Law33/64.The immediate question before us,Irepeat,iswhetheritiscompetent fortheFull Bench of the Supreme Court to assume the exercise of original 5 revisional jurisdiction after the assignment of a caseto a member of itunder s. 11
(2)and the commencement of the hearing before that Bench of the Supreme Court. Asimilar question was raised before me and decided in Panayiotides v. The Republic*. Jurisprudentially the decision isnot binding on the FullBench of 10 theSupreme Court, nordoesitfetter theJudge whoissueditifhe happens to be a member of the Full Bench, from holding otherwise if persuaded that the premise founding it is, for any reason, unsound. Inmiscasenot only I remain unpersuaded that thedecision waswrong,buthavingreflected anewonthereasons 15 supporting it, I feel convinced that it is well founded. More importantly Ifeel bound, asamatterofauthority too,tosubscribe to me ratio of Panayiotides (supra) in view of the subsequent decision of the FullBench inRoussos and Another v.Republic**. InPanayiotides (supra)theCourtruledthereisnocompetenceon 20 the part of asingleJudge whohasembarked upon thehearingof a recourse raised under Art. 146 to relinguish jurisdiction, being the only Court that can validly exercise thereafter jurisdiction in thematter.Thesamepropositionwasaffirmed inRoussos (supra); in fact, from a wider perspective, deciding that once proceedings 25 commence under s. 11
(2)before a single Judge, they become extant judicial proceedings that cannot be reviewed by the Full Bench except on appeal. No jurisdiction resides with the Full Benchtotakeoverthetrialofextantjudicialproceedings referable totheexercise of theoriginaljurisdiction of theSupreme Court. 30 Contrary to submissions made, s. 11
(1)does not vest in the plenum of the Supreme Court unlimited original jurisdiction. In accordance with the plain provisionsof subsection 1of s. 11,the originaljurisdiction oftheplenumoftheSupremeCourtislimited tocausesother than those specifically dealtwithbysubsections 2 35 and 3. Section 11
(1),translated in English,reads: «Thejurisdiction, the competence or powers vested in the Court under s.9 are exercised subject to the provisions of •
(1984)3C.L.R. 1271. ••
(1985)3C.LR.119,
- 986 3C.L.R. Georghlouft Othersv.Republic POdsJ. subsections2and3andeveryruleofCourt,bytheplenumof theCourt». «Court»isdefined bys.2(l)astheSupremeCourtsetupunder s,3andthejurisdiction, competenceandpowersvestedbys.9, 5 are those formerly possessed by the Supreme Constitutional Court and the High Court. Unquestionably, judicial causes regulated by subsections 2 and 3 are left out of the ambit of subsection
- The assumption and exercise of jurisdiction in relationtothosemattersispurelyamatterofinterpretation ofthe 10 provisionsofsubsections2and3andapplicationofrelevantrules ofCourtregulatingtheexerciseofsuchjurisdiction. Section 11
(2)entrusts without distinction the original jurisdiction formerly vested inthe High Court and the Supreme Constitutional Court, including applications for judicial review 15 underArt.146,tooneormoremembersoftheSupremeCourtas theSupreme Courtmaydetermine.AndtheSupreme Courtdid decide at thefirstmeeting held after its establishment on 6th August, 1964, that such jurisdiction be exercised by a single memberoftheCourt.Itispursuanttotheprovisionsofs.11
(2)and 20 the decision of the Supreme Court of 1964 that the three recourseshereunderconsiderationwerereferred toH.H.Justice Kourris.InthecaseofPanayiotides(supra),Idebatedatlengththe implications of subsetion 2 of s. 11 and the two-tier system of administration of justice created thereby. The provisions of 25 subsection 2 of s. 11are qualified bytheprovisotheretolaying down that from every decision of the Supreme Court in the exercise of its original jurisdiction, an appeal lies before the Supreme Court. Inthecaseof Vassiliades(supra)itwasdecided thattheCourtcompetenttotakecognizanceofsuchanappealis 30 the FullBench oftheSupremeCourt.Therefore, thejurisdiction of the Supreme Court in relation tojudicial causes specified in subsection 2 of s. 11ispurelyappellate.Assumption of original jurisdiction by the Supreme Court in relation to any of those causes is not only impermissible by the plain provisions of 35 subsection 2andtheprovisothereto,butwould,inmyjudgment, clearlydefeatthemanifestintentionofthelegislaturetoestablish inrelationtothosecausesatwo-tiersystemofjustice.Evidently,in improvising a uniform scheme for the exercise of the original jurisdiction formerly vested in the two superior courts, the 40 legislature adopted the constitutional scheme applicable to the HighCourt, whereby an appeal liedtotheplenum oftheCourt 987 PUdsJ. Georghlou& Othersv.Republic
(1987)from everydecision oftheHighCourtintheexerciseofitsoriginal jurisdiction —second proviso toArt. 155.2ofthe Constitution. Notonlythelegislaturesignifiedinunqualified termsitspurpose toestablishatwo-tiersystemofjusticerespectingthetrialofcauses amenable totheoriginal jurisdiction oftheSupreme Court, but 5 Rules of Court made after the enactment of Law33/64 were fashioned tothatreality.ByvirtueoftheprovisionsoftheRulesof Courtmadeon14thNovember, 1964*,theCivilProcedure Rules applicable toappeals,thesubjectofOrd.35,aremade applicable to appeals taken from decisions of the Supreme Court in the 10 exercise ofitsoriginaljurisdiction under s. 11
(2).The decisionof theFullBench inBranco Salvage Ltd. v.Republic**and NikiChr. Georghiou v.Republic*** indicate that the provisionsofOrd.35 should applytoappeals taken under theprovisoto subsection2, s. 11,in much the same wayas they doin civil appeals. The 15 importance ofthetwo-tiersystemofjusticeestablished bys.11
(2)was also thesubject ofcomment byA. Loizou,J.inRepublic v. Louca andOthers****·Thefollowing passage from the judgment of thelearned Judge issuggestiveofthis: «Provided that subject to any Rules of Court there was 20 given therightofan appeal totheFullBench from hisortheir decision»*****. Theonlycasewhereacontraryviewofs 11wastaken isthatof Stokkos v. Republic****'*. Triantafyllides, P., expressed the opinion that itiscompetent fortheFull Bench ofthe Supreme 25 Court toassume theexerciseofthe originaljurisdiction vestedin the Supreme Court bys. 11
(2).The observationswerenot meant toand had nobearingontheoutcomeofthedecisionandon that account they cannot be classified except asobiter dicta. In any event, they donotsupport theexistence ofjurisdiction onthepart 30 of the Full Bench to take over thetrial of commenced judicial proceedings before another member of the Court, a thesis specifically refuted inthe caseofRoussos (supra). *OfficialGazette362, PartII-19thNovember, 1964 "
(1967)3CLR 213 "'
(1968)1CLR 411 ••"
(1984)3CLR 241. ····'· Page249, lines20-25 ••••"
(1982)3 CLR 1110, 1116 988 3 C.L.R. Georghiou&Others v.Republic Plkis J. Inmyjudgmentnotonlys.11
(2)precludestheFullBenchofthe Supreme Court from taking over the hearing of judicial proceedings commenced before aBench ofthe Court butitlacks, under any circumstances, competence to exercise original 5 jurisdiction in respect of any of the judicial causes specified in subsection 2 of s. 11. Assumption of jurisdiction outside the framework of the law would not only entail departure from its provisions but would upset another fundamental attribute of justice, the apriori determination of the Court vested with 10 competence to try a Judicial cause. To the far reaching implications of lack of certainty in the determination ofthe Court competent totrythe case,Imade explicit reference inthe caseof Hadjisawas v. TheRepublic*. The decision of the majority of the Court of Appeal in that case does not, to my comprehension, 15 derogate from this position. In accordance with their judgment, the relevant decision of the Supreme Court determining the composition of the Appellate Bench under subsection 3 ofs.11, conferred powertoenlargetheBenchinanappropriatecase.We maynotethatsubsequently theapplication forenlargementofthe 20 Bench was abandoned. For all the above reasons I hold that the Full Bench lacks competence totrythe three recourses here under consideration. COURT: These cases are, by majority, fixed before the Full Benchforfurther oraladdressesandfortheproductionofrelevant 25 documentaryevidenceonthe23rdJuly 1987,at10.00a.m.,tobe continued on the 24th, if necessary. Orderaccordingly.
(1986)2C.LR. 154. 989