(1988)1988April 15 [A.L01Z0U,P.J INTHE MATTER OFARTICLE 146OFTHE CONSTITUTION STRAKKA LTD., Applicants, v. 1.THEREPUBLIC OFCYPRUS, THROUGH THE MINISTER OFINTERIOR AND THE DISTRICTOFFICER NICOSIA, 2.THEIMPROVEMENT BOARDOFKATODEFTERA, THROUGH ITS CHAIRMAN, Respondents. (CaseNo. 163186). Abatement ofrecoursefor annulment—Deprivation ofrecoursefrom its subject—matter coupled withabsenceofdamageordetrimentstemmingdirectlyfrom the sub judice act when in operation—Burden of proving such damage or detriment—Lies on applicant—Damage or detriment from a sourceother than thatabove referredtoinsufficienttosave therecourse— Grantingofbuildingpermitpending recourseagainstrefusaltograntsucha permit—Buildingalreadyerectedat timeofrefusal·—Recourse abated. Revisional Jurisdiction—Court hasnopower tomake academic pronouncements. RevisionalJurisdiction—Practice—Recourseforannulment—Parties—Refusal togrant building permit madeby District Officer as Chairman of an improvement board—Republic wronglyjoined asrespondent. Revisional Jurisdiction—Practice—Recoursefor annulment—Opposition,failuretofile—Courtshouldstiltexamine thevalidityofthesubjudice act. TheDistrictOfficer of Nicosia,acting inhiscapacity asChairman ofthe 760 3 C.L.R. Strakka Ltd. v. Republic Improvement Board of Kato Deftera, refused applicants' application for erection of a building, because applicants' plot of land originated from a partition undersection 27of theImmovableProperty (Tenure,Registration and Valuation) Law,Cap.224and therefore theissueof thepermit offends against theprovisionsof section 4AofCap.96. 5 Itmustbenoted that: (a)Atthetimeof thesaidrefusal thebuilding hadalreadybeen erected, and 10 (b) During the pendency of the recourse, section 42A was amended and,consequenUy,thepermitapplied forwasgrantedtotheapplicants. Thusthequestionarose whether therecourse wasabated. (c) Respondent 2 did not file an opposition, whereas respondents 1 raised apreliminary objection thatas they did not issuethesubjudice act, theywerewronglyjoined asrespondents. 15 20 Held,dismissing therecourse:
(1)Respondents 1werewronglyjoined. (Yiaki Estates Ltd. v.TheImprovement Board ofAyia Napa and Another
(1984)3C.L.R. 966adopted).
(2)Arecourse for annulment isabated, if it isdeprived of its subjectmatterand theapplicant hasnotsuffered anydamageordetriment stemming from thesubjudice actduring its operation. The burden of satisfying the Courtof suchdamageordetriment lieson theapplicant.
(3)In thiscase itisobvious that by granting thepermit applied for the recourse wasdeprived of itssubject-matter, whilst, as thebuilding had alreadybeenerectedat thetimeofthesubjudice refusal, noquestion ofdamagefrom thedelay ingranting thepermitarises. . 25
(4)Thesubmission thatthedamageordetrimentexistsinthelightofthe interpretation given by therespondents tosection 4A cannot be sustained. Damageordetriment inthecontextofaquestionof abatement meansdamageor detriment arising directly from thesubjudiceact and not from any othersource. 30
(5)In the lightof theabove thequestion raised by applicants as to the constitutionality ofsection4Aisofanacademic interest.
(6)Theabsenceofopposition doesnotprevent theCourt from examin: 761 Strakka Ltd. v. Republic
(1988)ingthevalidityofthesubjudiceact. Recoursedismissed. Noorderastocosts. Casesreferredto: Yiaki EstatesLtd. v.The Improvement BoardofAyia Napa andAnother 5
(1984)3C.L.R.966; Lambrou v.Republic
(1970)3C.L.R. 75; IrrigationDivisionKatzilosv.TheRepublic
(1983)3C.L.R.1068; MalliotisandOthersv.TheMunicipalityofNicosia
(1965)3C.L.R. 75; Chrysostomidesv.The GreekCommunal Chamber, 1964C.L.R. 397; Kyriakides v.TheRepublic, 1 R.S.C.C. 66; Platisv.TheRepublic
(1978)3 C.L.R. 384; Constantinou v.TheRepublic
(1966)3C.L.R. 572; Kontoyiannisv. TheRepublic
(1966)3C.L.R. 313; Vafeadesv.TheRepublic
(1966)3C.L.R.197; 15 Georghiadesv. TheRepublic
(1965)3C.L.R. 356; Papadopoullosv. MunicipalityofNicosia
(1974)3C.L.R. 352; Hapeshisv.TheRepublic
(1979)3C.L.R. 550; Christodoulidesv. TheRepublic
(1978)3C.L.R.189; Lyonasv.TheRepublic
(1975)3C.L.R.536; Malliotisv. MunicipalityofNicosia
(1965)3C.L.R. 75; 762 20 3 C.L.R. Strakka Ltd. v. Republic AndreouandOthersv. TheRepublic
(1975)3 C.L.R. 108; EPCOv.MunicipalityofNicosia
(1965)3C.L.R.416; Salemv. TheRepublic
(1985)3 C.L.R. 453; MinisterofFinancev.PublicServiceCommission
(1968)3C.L.R. 691; 5 Lambrakisv.TheRepublic
(1970)3C.L.R.72; CyprusTransport Co.v.TheRepublic
(1970)3 C.L.R. 163; Boardfor Registration ofArchitectse.t.c. v.Kyriakides
(1966)3C.L.R. 640. Recourse. 10 Recourseagainsttherefusal oftherespondentstoissuetoapplicants a building permit for theconstruction of abuildingon theirlandatK.Deftera. T.Papadopoulos, fortheapplicants. Chr.Ioannides,for therespondent. Cur. adv. vult. 15 A.LOIZOU P.read thefollowingjudgment. Bymeansofan application dated 3rd July, 1985, the applicants applied for a buildingpermitfor theconstruction ofabuildingupontheirplot No.330sheet/plan XXX/28.W.1atKato Deftera. 25 TheDistrictOfficer Nicosiabyhisletterofthe24thDecember 1985,informed theapplicants thattheirapplication was refused because thesaid plot of land "originated from apartition under section 27of theImmovableProperty (TenureRegistration and Valuation)Law,Cap224andtherefore theissueofthepermit offends against the provisions of section 4A, of the Streets and 763 A.Loizou P. Strakka Ltd. v.Republic
(1988)Buildings Regulation Law,Cap.96". As against therejection of their above application for abuilding permit,the applicantsfiled thepresent recourse whereby they prayed for thefollowing relief: "(
- a)Adeclaration of the Court that the actand/ordecision 5 of therespondents whichwascommunicated tothe applicants by letter of the respondents dated the 24th December 1985, and by meansof which there wasrefused theapplicants'application for a building permit, dated the 3rd July 1985,for the construction of a building upon plot 330 sheet/plan XXX/ io 28.W.1 at KatoDeftera, isnull andvoid andof nolegal effect whatsoever. Further or inthealternative. (
- b)Adeclaration of the Court that the omission of the respondents to issue to the applicants a building permit on the basis of their application dated the 3rd July, 1985,isnull and 15 void and of nolegal effect whatsoever and whatever has been omittedoughtand should havebeen performed." The recourse was mainly based on the following grounds of law: "1. Section 4A of the Streets and Buildings Regulation "20 Law, Cap. 96,does not, upon its true construction and application, cover the erection of a building upon a plot that had originated from adivision orpartition which had been effected before the coming intooperation of this section, that isto say before the 8th May, 1978. 25 2. Section 4A of the Streets andBuildings Regulation Law, Cap.96 isunconstitutional in itsentirety orto theextent itrefers todivisionorpartitionofaplotofland which hasbeen effected before thecoming intooperation of thissection, because it constitutes an exorbitant and unjustified and impermissible restriction of therightof property and bringsabout discriminatory, unfair and unequal treatment,contrary toArticles23and k 764 30 3 C.L.R. Strakka Ltd. v.Republic 28oftheConstitution." A.Loizou P. '•' . i. Respondents 1,raised thepreliminary^objection that they have riotissued the sub judice act or decision and therefore the recourse against them iswithout a subject matter. 5 10 1J 20 Noopposition hasbeen filed byrespondents2." . . . . . Following the filing of a written address by learned counsel for the applicants, learned counsel for the respondents filed the following document under theheading "written addressof therespondents". "This recourse is directed against the decision of the respondent to issue a building permit in respect of plot 330 sheet/plan XXX/28.W.1 at Kato Deftera dated 3rdJuly, 1985. 2.1humbly submit that asaresult of mywritten representations to the District Officer Nicosia, I received a letter from himdated the2ndJune, 1987,by meansof which he informed methat 'following therecent amendments of section 4A of the Streets and Buildings Regulation Law, Cap. 96, by meansof Laws 199/86and 53/87,theground ofrejection ofthe application hasvanished and thus theclaim upon which the recourse wasfiled has been absolutely satisfied bythe issue of abuildingpermit on the 13th April, 1987. 3.1 therefore, contend that this recourse has been rendered without asubject matterandmust bedismissed."' Learned counsel for the applicants contended that the subjudice act has brought about consequences which have not been l ~* erased by theissueof thenew decision. Therefore the applicants areentitled toand applyfor theissueof an annullingjudgment in their recourse in accordance with Article 146.1 of the Constitution. Such acourse isnecessary because itwill enable them toinstitute proceedings before the appropriate Court, under Article 30 146.6of theConstitution, and claim thedamages they havesus765 A. Loizou P. Strakka Ltd. v. Republic
(1988)tained during the period the sub judice act was in operation in viewof theprovisionsof Article 172of the Constitution. Learned counsel for the applicants elaborating on his above contention submitted that a judicial pronouncement upon the grounds of law in support of the recourse - under paragraphs 1 5 and 2above - was necessary because by the newdecision of the respondents thedrastic restrictions andobstacleswhich wereimposed by meansof the subjudicedecision arenoterased orabolishedbuton thecontrary theyremain inforce andconstitute serious and substantive restrictions to the use of the applicants' JQ property. These restrictions -the submission went on -are such as toobstruct the further development and/or exploitation of the applicants'property andculminate tothemanifestly unfair and illegal result which deprived theapplicants of the right to useand enjoy their propeny. This is so because upon an area of thirteen , donums, and according to the interpretation which respondents gave tosection 4A of Cap.96,the applicants aredeprived of the right to erect any other building, besides the one they are now erecting and which in any case it is being erected following the amendment of section 4A. Thepreliminaryobjection: Though learned counsel for therespondents hasnotelaborated on the preliminary objection, it would appear that it is based on the ground that the subjudice decision was not taken by respondents 1 -theMinister of Interiorand theDistrict Officer Nicosia - ybut by respondents 2 - the Improvement Board of Kato Deftera. If this isthe case then of Yiaki Estates Ltd., v. 1. The Improvement Board of Ayia Napa, 2. TheDistrict Officer of Famagusta
(1984)3C.L.R. 966 is applicable. In this case Iheld: " ...that the District Officer acted solely in hiscapacity as ™ Chairman of the respondent Board and he took no executory decision ofhisown orconfirmed anydecision taken by theappropriate authority; thatfor allintentsand purposesit would be enough in the circumstances to have made the Improvement 766 3 C.L.R. Strakka Ltd. v.Republic A.Loizou P. Board of Ayia Napa as the respondent in these proceedings, theDistrictOfficer ofFamagusta assuch havingnolocusstandi in his said capacity in the present proceedings; and therecourseagainst him hastobedismissed for that reason." 5 Adopting myreasoning in the Yiaki's case Ihold that therecourse againstrespondents 1 mustbe dismissed. 15 I shall nowproceed todeal with themeritsof therecourse notwithstanding the non-filing of opposition byrespondents 2 and their non appearance because a recourse for annulment such as thisone,isaimed against theactordecision (oromission) which is its subject matter and not against any party as such, and the failure tofilean opposition or theabsence of any party from the proceedings does notprevent theCourt from examining (and determining) thevalidity of thesubject matter of therecourse. (See Lambrou v.Republic
(1970)3C.L.R. 75). 20 Inviewoftheissueof thebuildingpermitduring the pendency of the recourse the issiie that arises for consideration is this: Whether the subject matter of the recourse has disappeared and theconsequences of such disappearance upon the fate of therecourse. 10 The relevant principles have been expounded by Stylianides J., in Irrigation Division Katzilos v. The Republic
(1983)3 C.L.R. 1068,at pp. 1080-1083 as follows: 25 30 "Counsel for therespondent argued that the subject matter of this recourse ceased toexist by the lateract of the grant to theinterestedpartyofthepermit undertheWaterSupply (Special Measures) Law of 1964 (Law No.32 of 1964) and consequently theactchallenged lostitsexecutory nature. Arecourse may be abated as aresult of events which take place subsequent tothefiling and before theconclusion of the hearing of such recourse^ In general arecoursecannot continuewhenitssubject-matter hasceased toexist(ChristosMallio-· : 767 Λ. Loizou P. Strakka Ltd. v. Republic
(1988)tis and Others v.The Municipality of Nicosia
(1965)3 C.L.R. 75). Article 146, paragraph 2, of the Constitutionprovides that "arecoursemay be madeby apersonwhose any existing legit imate interest, is adversely and directly affected". Exis- 5 tenceof interestof an applicantis aconditionprecedentof the annulmentjurisdiction of anadministrative Court. A recourse for annulment is notan actiopopularis; itrequires inrespect of theapplicantalegitimatio causum.Therequired interestof the applicant must subsist on the date of the hearing of the re- IQ course as well (Kyriacos Chrysostomides v. The GreekCom munal Chamber, 1964 C.L.R. 397, 402). When the subject-matter of arecourse ceases toexist and thecontinuation of arecourse serves nopurpose,therecourse is abated. It is abated when the sub judice act is revoked ex- 15 pressly or by implication. (Jurisprudence of the Council of State in Greece,1929-1959, p. 275). The aim of arecourse is theannulment of anadministrative act andtheerasing of all its consequences,or the legal results thatitproduced. Therefore, if the applicantdid suffer adetrimentwhilst theadministrative 2 n act was still operative, and before it ceased to exist the re course is notabated. Under Article 146.6 of theConstitutionaperson is onlyen titled toseek compensation after heobtains ajudgment inan nulment proceedings before the administrative Court.There- ~<fore, if he suffered any damages from the sub judice administrative act, though itceased toexist after thefiling of therecourse,heis entitled tohave therecoursedeterminedasa judgment of this Court under paragraph
(4)of Art. 146 is a sine qua nontoaclaim for damages before aCivil Court, un der Art. 146.6 before the appropriate Court. (Kyriakides v. The Republic 1R.S.C.C.66, 74). InGreecetheposition is lucidly stated inTsatsos - Applica tion for Annulment,3rd edition,p.372, as follows: 768 3 C.L.R. Strakka Ltd. v. Republic A. Loi/.ou P. 1 Εάνηζημιογόνος πράξιςτηςδιοικήσεωςδεν ανακληθή,αλλάκαταργηθή,ήανακληθή,αλλ' ουχίπλήρως, δηλα δήεξυπαρχής,αλλ'απότίνοςχρονικούσημείουμεταγενε στέρου της εκδόσεως της προσβαλλομένης πράξεως, εξεταστέον αποβαίνει, εάν εκ της ισχύος αυτής απότου χρόνουτηςεκδόσεως μέχρι τηςτοιαύτηςανακλήσεωςπα ρήχθησαναποτελέσματα ζημιούντατον προσφυγόντα και δεκτικάπλέονανατροπής μόνονδι'ακυρώσεως.Ειςηνπε ρίπτωσιν παρήχθησαντοιαύτα εκ της προσβαλλομένης πράξεως αποτελέσματα, η αίτησις ακυρώσεως,παρά την από χρονικούσημείου εφ'εξής μόνον επενεργούσαν ανακλητικήνπράξιν,δεν αποστερείταιτουαντικειμένουτης. Εις ην περίπτωσιν όμως δεν παρήχθησαν τοιαύταεκ της προσβαλλομένης πράξεωςαποτελέσματα,τουλάχιστονως προς τον αιτούντα ή παρήχθησανως προς αυτόν αλλά μετά το χρονικόν σημείον, αφ' ου ηανάκλησις ενεργεί, η περίακυρώσεωςαίτησιςαποβαίνειάνευ αντικειμένου*. 20 25 30 ('If the injurious act of the administration is not revoked, butis cancelled, orrevoked, but notcompletely, thatis from thebeginning, butfrom acertain period of timesubsequent to theissueof theattacked act,itshould beexamined, if from its validity from the time of its issue until such revocation were produced results injurious totheapplicant and amenable only to annulment. Inthe case where such results have been pro duced by the attacked act, the application for annulment in spite of thefrom acertain timelimit andthereafter influencing revocative act,it is notdeprived of its object. But in the case where nosuchresults have been produced by theattacked act, atleastinrespect of applicant orhave beenproduced in respect of someone elsebut after thetime limit, when the revocation operates, theapplication for annulment becomes without ob ject)'. Spiliotopoulos intheManual of Administrative Law, 2nd edi tion,p.454 stated:505. Η δίκη καταργείται (ΝΔ 170/1973 άρθρον 32), 769 A. Loizou P. Strakka Ltd. v. Republic
(1988)πλην τηςπεριπτώσεωςελλείψεως υποκειμένου καιλόγω ελλείψεως αντικειμένουειςταςακολούθουςπεριπτώσεις: (ι).... (ιι).... (ιιι)ανακλήσεωςτηςδιοικητικήςπράξεωςεν τω συνόλωτηςμετάτηνκατάθεσιντηςαιτήσεωςακυρώσε ως ή της προσφυγής,ρητής (ΣΕ 3570/1978), (ΐν) .... (ν) 5 αντικαταστάσεως ή τροποποιήσεωςτης προσβληθείσης διοικητικής πράξεως μετά την κατάθεσιντης Αιτήσεως Ακυρώσεως (Σ.Ε. 2349/1978) (
- vi)λήξεως της ισχύοςτης διοικητικής πράξεωςχωρίς να παραμένουνδιοικητικής φύσεωςσυνέπειαι(ΣΕ3958/1978) ...Λ 10 ('505. The trial is dismissed (Law 170/1973 section 32), except inthe caseof lack ofsubject and duetolack of objectin the following circumstances: (
- i),(
- ii), (iii) rev ocationof the administrativeactinwhole after thefilingof the application for annulmentorthe recourse,express (C.S. 3201/ , <1978) orimplied,resulting from the actof the same organand regulating the same matter (C.S. 3570/1978), (
- iv)..., (v)re placementoramendmentof the attackedadministrativeactafter the filing of theapplication for annulment(C.S. 2349/1978), (
- vi)expiry of the validity of the administrative act without thereremainingresults of an administrative nature'). In thepresent case the subjudice decision ceased toexist and thelegal position is governed by theactof 17thSeptem ber, 1982 -the issue of the permit under the Water Supply (Special Measurers) Law of 1964,asaforesaid. Nodamageor detriment,was caused by theactchallenged before itceasedto beoperative." (See also, Plans v. TheRepublic
(1978)3C.L.R. 384;Constantinou v. The Republic
(1966)3C.L.R. 572; Kontoyiannisv. The Republic
(1966)3 C.L.R. 313; Vafeades v. The Republic
(1966)3 C.L.R. 197; Chrysostomides v. The Republic, 1964 3 0 C.L.R. 397; Georghiades v. The Republic
(1965)3C.L.R. 356; Papadopoullos v. Municipality Nicosia
(1974)3 C.L.R. 352; Hapeshisv. The Republic
(1979)3C.L.R.550; Christodoulides v. The Republic
(1978)3 C.L.R. 189 and 193; Lyonas v. The 35 770 3 C.L.R. Strakka Ltd. v. Republic A.Loizou P. Republic
(1975)3C.L.R. 536;Malliotis v.Municipality Nicosia
(1965)3C.L.R. 75;Andreou andOthersv.TheRepublic
(1975)3 C.L.R. 108;EPCO v. Municipality Nicosia
(1965)3 C.L.R. 416;Salem v.TheRepublic
(1985)3C.L.R.
- 5 10 IntheEPCOcase, supra, same asin thiscase,applicants were complaining against "the refusal, or omission, of the Municipal AuthoritiesinNicosia town tograntthem abuildingpermit". During the pendency of the recourse against the refusal or omission inquestion, thesaid permit wasgranted. Triantafyllides J-»as he then was, dealt with the matter as follows at pp.421422: "The said permit was subsequently issued toApplicants in September,
- So any omission that existed until then ceased inSeptember,
- 15 20 25 30 What remains tobeexamined is whether or not theissuing of such permit nearly a year after the application had been made for it has cured whatever omission had existed in the matter, thusdepriving thisrecourse of its subject-matter, with the consequence that the proceedings are abated. No doubt a recoursecannotcontinuewhen itssubject-matter hasceased to exist (Malliotis and The Municipality of Nicosia reported in thisPart atp.75ante). When ahomission isbeingcomplained ofin arecourse and what has been omitted is performed later, the recourse becomes abated,asbeingdeprived of its subject-matter, unlessit is shown that what has been done belatedly is not so useful to the party making the recourse as it would have been had it beendoneattheappropriate timeearlier. (Vide Kyriakopoulos on Greek Administrative Law, 4th edition vol. Ill p. 146 andTsatsoson Recoursefor Annulment, 2ndedition at p.241). In this Case it has been alleged by counsel for Applicants thatApplicantswereprejudiced bythedelay tograntthepermit 771 A. Loizou P. Strakka Ltd. v.Republic
(1988)but noconcrete proof of such prejudice has been adduced; on thecontrary itisnotdisputed thatthepermit,even when granted, was allowed tolapse,bythe passage of ayear from theissue thereof, and then when renewed it was again allowed to lapse, without any building being undertaken during all this 5 time.Thereafter noapplication for itsrenewal wasmadeagain until themat.ercame upbefore theCourt inJanuary, 1965. Inall thecircumstances of thisCase Ihavecometotheconclusion that the admittedly belated issue,in September, 1962, of the building permit to Applicants should be taken as JQ amounting toacureof thepreviousomission of Respondent in thematter and that, therefore, thisrecourse hasbeen rendered without asubject- matter and hasconseqently been abated. Itis dismissed accordingly for thisreason." In the Malliotis case, (supra), Triantafyllides J., as he then was, said the following at pp. 94-95: 15 "Having come totheconclusion that thesubjudice scheme hasceased toexist, Iamof theopinion that thisrecourse cannot continue against such scheme because these proceedings have been consequently abated. 20 It is well settled that a recourse cannot continue when its subject-matter has ceased toexist. (See Conclusions from the Jurisprudence of the Council of State in Grece 1929-1959 p. 275 as well as Chrysostomides and the Greek Communal Chamber, 1964 C.L.R. 397). 25 Itmight beobserved atthis stagethat we arenot concerned in this Case with an administrative act of limited duration which, before ceasing to have effect, has produced already permanent and continuing results. If that were so, then depending on the exact circumstances, therecourse could possi- 30 bly have proceeded, irrespective of thedetermination of the effect of the act. In the motion for relief, however, Applicants object against an act the results of which would materialize 772 3 C.L.R. 5 10 15 2Q 25 35 Strakka Ltd. v. Republic A.Loizou P. onlyif theobjection weretoberejected and Applicants had to apply for a building permit, with the consequences provided for by section 13of Cap.96.As the said act hasceased toexist before any such results have been produced, not only has thesubject-matter of therecourse disappeared but, also,nolegitimateinterestof Applicants isbeing affected." Inconsidering theissue of abatement of this recourse and the correlated issue of whether applicant has suffered any detriment whilst thesubjudiceact was still operative wemust bear in mind. thatthebuildingwhich constituted thesubject matterof the buildingpermit which wasapplied for and refused had been constructed before the subjudice refusal or omission. (See para 7 of the opposition). It is clear from the above case law (a) that a recourse cannot continuewhen itssubject matterhasceased toexistand(b)thatin such a case an applicant is entitled to have the recourse determined if he has suffered any damage or detriment from the sub judice act during theoperation thereof. Having regard tothe fact that a building permit was granted to applicants during the pendencyof therecourse and tothefact that thesubject matterof the recourse wastherefusal oromission tograntsuch abuilding permit,Iamdriven totheconclusion thatthesubject matterof therecourse has disappeared or ceased toexist and the recourse must for thisreason betreated ashavingbeen abated. Regarding applicants' submission for pronouncement on the merits of-the recourse applicants have to satisfy prerequisite (b) above namely that they have suffered damage ordetriment from thesubjudice actduring theoperation thereof. Itisclear from the EPCOcase (supra),that theburden of satisfying such aprerequisiterestson theapplicants. Asalready-stated thebuilding inquestion had been erected before the subjudice refusal. So noques-" tion of detriment, prejudice or damage arises because of the belated issue of the permit. Applicants' submission on thequestionofdetriment concerns thecorrect interpretation and constitutionality of section 4A of Cap.96 because they contend that the 773 A. Loizou P. Strakka Ltd. v. Republic
(1988)interpretation that was given to it by applicants prevents them from further developingorexploitingtheirland. TotheabovesubmissionoflearnedcounselIhavethistosay: A recourse for annulment, such as the one in this case, is aimed against theactordecision whichisitssubject matter;and 5 whatisprimarilybefore theCourtisthedecisionsubjectmatterof the recourse and its validity (SeeMinister ofFinance v. Public Service Commission
(1968)3C.L.R. 691;Lambrou v.The Republic
(1970)3C.L.R.75; Lambrakis v.TheRepublic
(1970)3 C.L.R. 72; Cyprus TransportCo., v. The Republic
(1970)3 io C.L.R. 163). Inthiscasewhatisbefore theCourtisthevalidityofthedecision oftherespondentswhereby theyrefused tograntabuilding permittotherespondentsandthegroundsuponwhichthesubjudicedecision wasbased, namelytheinterpretation of section 4A 15 of Cap.96,etc., areof Secondary importanceanddonot affect atallthequestionoftheexistenceofdetriment,damageorprejudice. Whenwespeakofdamage,detriment,orprejudiceinthiscontextwemustconfineittodamagearisingsolelyanddirectlyfrom 20 the subjudice act itself and notfrom any other source. Inother wordsthecauseandsourceofthedamagemustbethesubjudice actandnotcausesorsourcesincidentaltothesubjudiceactsuch as thegroundsupon which itwasfounded. Therefore applicants havenotsuffered anydamage,detrimentorprejudice duringthe 25 operation ofthesub judiceactandare,thus,notentitled toadetermination of therecourse.If infuture applicants areprevented bytheadministration onanyground,includingthegroundsofinterpretation and constitutionality of thesaid section 4A ofCap. 96, from further developing or exploiting their land theroad is ™ openforthemtochallengetherelevantdecisionoftheadministrationbymeansofarecourse. I would further, add that since the subject matter of there774 3 C.L.R. 5 ,Q Strakka Ltd.v. Republic
(1988)coursehasceased toexist andsince I have beeninvited by appli cantstopronounceonthecorrectinterpretationand constitutional ityofthesaid section4AofCap.96.thisistantamounttobeing invited todetermine abstract questions. But aswasheld in the Boardfor Registration ofArchitects etc.v.Kyriakides
(1966)3 C.L.R.640,atp.655"thejudicial power does notextend to the determinationofabstract questions;anditisnotthehabitofthe Courttodecidequestionsofaconstitutionalnatureunless abso lutely necessary toadecisionofthecase".Itisclearfromall the abovethatthequestionsthedeterminationofwhichis soughtby theapplicantsarenotnecessary toadecisionof thecase. For all the above reasons therecourse hasbeen abated and mustbedismissed.Therewould benoorderastocosts. κ Recourseabatedanddismissed. Noorderasto costs. IIS