clr/1988/1988_3_185.pdf

(1988)thattheapplicant, whowasresidingat Yeroskipou, had,as hisbusiness, thepurchaseandsaleofcarsandwasanagentforthesaleofPeugeot-make cars. He was also the agent of Subara-make cars and has an office at Yeroskipouandashow-roomatKato-Paphos. 5 Held,annulling thesubjudicedecision:

(1)Sections 10

(1)and

(2)of Law9/82 govern the grant of licences for the hireof vehicles withouta driverandsection5

(9)prohibitsthegrantofaroaduselicenceinrelationto anyvehicle,unless theownerthereof persuades theLicensingAuthority that he is carrying out the said business of transportation as his main profession. 10

(2)Theactoftransfer ofthetwovehiclesdoesnotunequivocallyshow its legal significance. Indeed, it may have been relied upon as an act prohibitedbylaworasanactshowingthatapplicantdidnotindendtocarry onthebusiness as hismain profession. If theCourtassumes thesecond alternative (the first is contrary to law), it would be tantamount to 15 supplementing thereasoningofthesubjudicedecision.Thereshouldhave beenaclearfinding thattheapplicantdidnotcarryorintendtocarryashis mainbusinessthehireofcarswithoutadriver. Thoughthetransfer ofthetwovehicleswaslinkedwithquestionsabout thebusinessactivitiesof theapplicantbutastheactoftransfer byitself is 20 capable of more than one interpretation, thejudicial control of it isnot possibleandtherefore thesubjudicedecisionsuffers from lackofadequate reasoning,therebeing noreference totheexactruleapplicablenorhasit beensubjecttotheexactprovisionofthelawapplicableasitoughttohave beendone. 25 Subjudicedecisionannulled. Noorderastocosts. Recourse. Recourse against the decision of the respondent allowing the hierarchical recourse of the interested parties against the decision of the Licensing Authority to grant applicant licences for eight vehicles for hire without a driver. ^ Chr. Clerides, for the applicant. M. Tsiappa (Mrs), for the respondent. 186 „. 3 C.L.R. Facontis v. Republic A. Panayiotou,for theinterestedparties. Cur. adv. vult. A. LOIZOUJ. read the following judgment. By the present recourse the applicant seeks a declaration of the Court thatthe decision of the respondent Minister by which he allowed the hierarchical recourse of KEM Taxi Ltd., A. Petsas and Sons Ltd.,F.Varianou and Co.Ltd.,andASTRA self-drive carsLtd., against the decision of the Licensing Authority of the 30th September, 1982, to grant tothe applicant licences in relationto eight vehicles for hire without adriver commonly known as"Z" licences is null andvoid andof noeffect whatsoever. 1 0 15 20 25 30 The relevant facts are briefly these. On the 20th May, 1982, the applicant who was already the owner of two licences for vehicles for hire without a driver applied to the Licensing Authority for the grant of such licences for another twenty vehicles of Peugeot-make. In his said application theapplicant described his business to have been an agent for the sale of Peugeot-make cars and also to have an office for the hire of vehicles without a driver which apparently was related to his therein stated ownership of two such licensed vehicles under registration No. ΖJR832 and ZKB187 (see Exhibit "C"page 1). Fromthe report of a District Transport Inspectordated the 3rd June, 1982 andof theDistrictOffice of theDepartmentof Inland Transport dated the 7th September 1982, it transpires that the applicant who was residing at Yeroskipou and was theowner of twolicensed vehicles hadas his business thepurchaseandsaleof cars andwas anagent for thesaleof Peugeot-makecars. He was also the agent of Subaru-make cars and has an office at Yeroskipou and a show-room at Kato-Paphos. The rental business was intended to be carried out at Kato-Paphos (see Exhibit "C"pages 2 and3). By letterdatedthe6thOctober 1982, (Exhibit "C"page 6), the Licensing Authority communicatedtotheapplicanttheirdecision taken attheirmeeting of the 30th September 1982, by which they 187 Λ. Loizou J. Facontisv. Republic

(1988)granted totheapplicanteight licencesfor hireof vehicles without a driver andvehicles tobe stationedat Kato Paphos. Following thegrant of the above mentionedeight licences,the applicant on the 15th October 1982, entered into a written agreement with one Polydoros Eleftheriou for thesale of one of 5 the two licensed vehicles (vehicle JR832) owned by him atthe time of thedecision of theLicensing Authority (SeeExhibit "B" page 25.) Also on the 25th November 1982, the applicant also consented to the transfer of the other licensed vehicle (vehicle KB187) to KYPREXXO MotorAgency (see Exhibit "D"pages 1 0 15 and 16). The Licensing Authority approved the transfer of the said vehicles at its meetingof the 15th March, 1983,butit decidedto bring themattertotheattention of therespondentMinister,before whom thehierarchicalrecourseagainst theLicensing Authority's decision togrant theeight licences was pending(see Exhibit"D" p. 27). Before proceeding any further it is useful toset outhereinthe sub judice decision issued by the respondent Minister in pursuance of the hierarchical recourse of the interested parties made under the Motor Transport Regulation Law 1982 (Law No.9of 1982) which reads as follows: 15 20 "Decision of the Ministerof Communications andWorksin the recourse of Messrs. Kem Taxi Ltd., A. Petsa and Sons Ltd., Ph. Varianou and Co.,Ltd., and Astra, self-drive cars 25 Ltd.,against thedecision of the Licensing Authority by which eight 'Z'licences were granted toDemetrisFaconti. Having in mind the legislation in force and all the facts placedbefore meandinparticularthefact thatafter thegrantto himby theLicensing Authority of thechallenged eight licences he transferred two licences to other persons, I allow this recourse." 30 3 C.L.R. Facontis v. Republic A.Loizou J. It is the case for the applicant that in accordance with the provisions of Section 6

(1)of the Motor Transport Regulation Law 1982 (Law No. 9 of 1982) "Z" licences, as other licences for road use relate to the vehicle in respect of which they are 5 granted andcan betransferred with it byitsowner.Furthermore, although the right to acquire and dispose of property is safeguarded byArticled 23

(1)of theConstitution, therespondent Minister by his subjudice decision penalized, it wasargued,the applicant for having exercised such statutory and constitutional 1 0 right by considering fatal the sale of the "Z" licences. It was moreover argued that although in the sub judice decision reference ismade "toall thefacts of thecase",noparticulars are given and consequently to that extent that part of the decision cannot beconsidered asduly reasoned. ,c 2 0 25 35 Itwas further contended that thesaleof such "Z"licences isa neutral factor and what had to be determined was whether such salecontravened any oftherelevantcriteria laiddownonthe28th September 1982, namely "to make viable small business and toenable persons engaged in connected fields and whohave themeanstoobtain such licences." Sections 5

(3)and 5

(6)(d) give the Licensing Authority discretionary powers to grant road use licences for the hire of vehicles without adriver. Section 10

(1)and

(2)govern thegrant of licences for thehireofvehicles without adriver,and section5

(9)prohibits the grant of a road use licence in relation to any vehicle unless the owner thereof persuades the Licensing Authority that he iscarrying out thebusinessof transportation or proposes tocarry out thesaid business ashismain profession. It was submitted on behalf of therespondent Minister thatthesubjudice decision was reasonably open to him in view of the facts of the case and in particular the fact of transfer by the applicant of two licensed vehicles after the grant to him of eight additional licences and that he remained unconvinced that the applicant proposed to carry out as his main profession the business of hiring vehicles without a driver. It was urged that 189 A.Loizou J. Facontis v.Republic

(1988)having remained so unconvinced the respondent Minister had a statutory obligation under section 5

(9)of the Law to refuse the grantoflicences tothe applicant. In support of the aforesaid proposition and in addition to the facts of thecase outlined hereinabove myattention wasdrawn to 5 the hearing of the hierarchical recourse on the 29th May, 1983, where it was put forward on behalf of the interested parties that the applicant neither carried out norproposed tocarry out as his main profession the business of hiring vehicles without adriver his aim being the purchase and sale of licensed vehicles, JQ Moreover although the applicant denied the said allegation and claimed that as a matter of fact he had not sold to Polydoros Eleftheriou his licensed vehicle under Reg. No. JR832, this allegation, however, conflicted with the statements of the said Polydoros Eleftheriou who alleged that he had purchased from ,c the applicant the licensed vehicle and it also conflicted with the contents of the written agreement entered into between the applicant and the said purchaser. Furthermore the applicant had failed to give any details or documentation in support of his allegation of the existence of a pannership agreement between ^0 himself and the said Polydoros Eleftheriou. The present case can, in myview, bedetermined on the issue whether the subjudice decision is duly reasoned or not. It has been said time and again that thereasoning of an administrative decision may be supplemented from the material in the file, if 25 there isnoadequatereasoning in the bodyof thedecision. In the sub judice decision apart from the generalities which can be applied toevery case,namely thereference tothelawinforce and not to any particular section or sections thereof and to the facts placed before the respondent Minister, the only element ._ mentioned is the fact that after the grant to the applicant by the Licensing Authority of thechallenged eight licences he transferred twovehicles toother persons.Thisconcrete action on thepart of the applicant cannot by itself be a reason for thecancellation of the eight licences granted to him, as it does not unequivocally 35 show thelegal significance ofit.Assuch itmayhavebeen relied upon as an act prohibited by Law hence the result arrived at by 190 3 C.L.R. Facontisv. Republic A. Loizou J. therespondentMinister,or as showing thattheapplicantwas not carrying or did not intend to carry as his main profession the business of hiring vehicles. 5 ΙΟ ,c 2 ^ 25 30 If Iwere therefore toassume thatthereference tothiselement shows thattherespondentMinisterhad notbeen convinced bythe applicant that he was carrying out or intended to carry out the business of hiring vehicles without a driver as his main profession, I would have been myself drawing inferences from theevidence adduced andsupplementing thereasoning of the sub judice decision. There was needed in the subjudice decision the conclusion that the act of the transfer of the two vehicles amounted to what learned counsel for the respondent Minister claims tohaveestablished. Thereshould have been aclear finding that the respondent Minister had not been convinced that the applicantcarried orintendedtocarry as his mainbusiness thehire of cars without a driver. It is true that at the hearing of the hierarchical recourse before the respondent Minister which resulted inthesubjudice decision, thetransfer of the two vehicles was linked with questions about the business activities of the applicant, but as the act of transfer by itself is capable of more than one interpretation,thejudicial control of it is not possible and therefore the sub judice decision suffers from lack of adequate reasoning. There being no reference to the exact rule applicable norhas itbeen subject totheexact provision of the law applicable as it ought tohave been done (See Tsatsos "Recourse of Annulment",thirdeditionparagraph 112 page 239). For all the above reasons the subjudice decision is annulled and the matter will have to be re-examined by the respondent Minister. In the circumstances, however, there will be no order as to costs. Subjudice decisionannulled. No order as to costs. 35 191