(1989)19S9 February IS [K0URR1S.J.] INTHE MATTER OF ARTICLE 146 OFTHE CONSTITUTION TAMASSOS TOBACCO SUPPLIERS .AND CO.. Applicants, v THE REPUBLICOFCYPRUS THROUGH THE REGISTRAROF COMPANIES THE DEPARTMENT OFOFFICIALRECEIVER AND REGISTRAR OY COMPANIES Respondents (Case Λο.345/S7) Acts or decisions m the sense of Art. 146J of the Constitution — Rectification of application for registration of partnership— It is m the domainof Private Law TheRegistrar of Companieseffected corrections in anapplication foi 5 the registration of partnership, following, as alleged b\ respondents. authorisation given over the telephone bv one of the employees of one of the promoters of the company The main correction was that the partnership would be bound by the signature of all the partners andnot b) anyone of them as it had been stated in the onsmai application 10 following the registration of partnership, the applicants applied for rectification of the application in such a way as to restore the original application, alleging that there had never been an authonsation for amending the onginal application Therespondent Registrar rejected the application Hence the present recourse 15 In thelight of thedecision inPhotiades i.Photiades(19S8) 3 CL R 20S4 the Court held that as this case concerns registration of a partnership,therecourse is not justiciable, because thesub judice act isin the domain of Private Law The Court added, that the same conclusion 20 would be reached, even if the case did not concern registration of 214 3 C.L.R. Tamassos Tobacco Supl. v.Republic partnership,but.simply,correctionsintheform fortheregistration ofa partnership. Recoursedismissed, h'o order as to 5 costs. Casesreferredto: Laoudhias v. Republic2R.S.C.C. 119, 10 HellenicBankv. Republic
(1986)3C.LR. 481, YorkInternationalSecurities Lid. v. Republic
(1981)3C.LR. 834, 15 /.W.S. Nominee CompanyLtd. v. Republic
(1961)3C.LR. 582. Merck v. Republic
(1972)3C.LR. 54S. AnroniouandOthers v. Republic
(1984)3C.LR. 623. 20 Photiades v. Photiades
(1988)3 C.LR. 2084. Recourse. 25 Recourse against the refusal of the respondents to rectify applicants' application dated 24.12.86 for their registration as a partnership. R. Stavrakis with G. Cacoyannis, for the Applicants. 30 A. C. Evangelou, Senior Counsel of the Republic, for the Respondent. Cur. adv. rair. 35 40 KOURRIS. J. read the following judgment. By the present recourse applicants pray for a declaration that the decision of the Registrar of Companies contained in his letters to the applicants dated 16/2/19S7 and24/3/1987 whereby he refused to rectify the application of the applicants (on Form O/E.l) dated 24/12/1986 for their registration as a partnership isnulland void and of no effect whatsoever. 215 Kourris. J. Tamassos Tobacco Supl. Λ.Republic
(1989)The facts which gave rise tothis recourse shortly are these.On 24/12/19S6at about noon an employee of Καπνοβιομη χανία Γχαρανη; και Πετοίόη; Λτδ (Garanis and Petndes Tobacco Industrv Ltd) filed form No O/E 1 for the registration 5 of the partnership Tamasos Tobacco Suppliers and Co which was wronslv described on this form as Tamasos Suppliers and Co. The officer of the department of theRegistrar of Companies 10 who checked theform found out certain discrepancies requiring amendment and/or qualification The promoters of the said partnership were in great urgency to register same so Mrs Anastassiou. theofficer responsible for 15 the registration of partnerships, communicated over the telephone with Mr.Loucis Petndeswhowas oneoi the directors of Garanis and Petndes Tobacco Industn Ltd and ha\mg received the necessan information and having received instructions to make herself the necessan corrections she 20 proceeded anddidthese corrections Hadthese corrections not been made the partnership could not be registered on the same day. One of the corrections effected by Mrs Anastassiou under 25 the instructions and authonzation of Mr Loucis Petndes was the term as to who should sign on behalf of thepartnership She deleted inthe form thewords that anyone of the partners should bind the partnership and inserted therein that all the partners should sign in order to bind thepartnership 30 It is the allegation of the respondents that Mrs Anastassiou madethealterations inthepresence of anotherofficer, bona fide and in an effort to assist in view of the great urgency in the matter. On 31/1/87 the respondents recened a letter signed by the lawyers Messrs R and Ch. Stavrakis and P.L Cacoyannis and Co asserting that thealterations made on theform O/E 1were not done under authonzation of the applicants and that these 40 were effected without them knowing and consequently invited the Registrar to rectify the alterations made concerning the 216 35 3 C.L.R Tamassos Tobacco Supl. \. Republic Kourris. J. persons binding the partnership They did not request that all other alterations madeshould be corrected On 16/2/19S7theRegisterofCompaniesrepliedtotheabove 5 lawyers denyingthatthealterations madewereunauthonzed bv their clientsandrefused tomakethecorrections applied for On 23/2/1987 the same lawyers again wrote to the Registrar of Companies insisting on their position and the Registrar replied again on 24/3/1987 to applicants' lawyers and confirmed the 10 onginal decision Applicants' main contention isthat, even assuming that the facts were as alleged bv the respondents, which is denied it is still evident that ininterpreting those facts the wav they didthe 15 respondents actedunder amatenal misconception of law tothe effect thattheRegistrai misinterpreted theprovisionsof Section 51 ofthePartnership and BusinessNames Law Cap 116 The\ contended that Mr Petndes had neither the nght nor the authority tomakeam alteration tothecontents of FormO/E1 20 and in anv case the\ den\ that he ever authonzed such alteration It is applicants further contention that the respondents' decision wasbasedon matenal misconception of facts, nameh. 25 that Mr Petndes wasa partner The othei legal grounds on which applicants base their recourse are lack of due reasoning and abuse of powers on the part of the respondents 30 Counsel for therespondents intheopposition filed, contends that the act of the respondents isnot justiciable He contended that the sub judice decision does not constitute an act in the domain of the Public Law and consequenth it is not justiciable 35 in the sense of Article 146 1 of the Constitution He relied on the cases Stelios Laoudhias \. Republic 2 R S C C 119 Hellenic Bank i. Republic
(1986)3 C L R 481 and York International Securities Ltd. i. Republic
(1987)3 CLR 834 40 Counsel for the applicants contended that the refusal of the Registrar to make the correction in the form filed bv the 217 Kourris, J. Tamassos Tobacco Supl. v.Republic
(1989)applicants fortheregistration ofthesaidpartnership constitutes an '"act'*inthesenseofArticle 146.1oftheConstitution because the object of the corrections of the contents in the said form is the protection ofthepublicandconsequentlyconcerns amatter of publicinterest. They relied on thecases of l.W.S. Nominee 5 Company Ltd. v.Republic
(1967)3C.L.R. 582, E.Merck v. Republic
(1972)3 C.LR. 548, Antoniou and Others v. Republic
(1984)3 C.L.R. 623. They also referred me to ''General Administrative Law"' by Daktoglou. 2nd Edition, paragraph 44 10 I was impressed by the argument of learned counsel for the applicants which wasvery attractive,but inview ofthe decision of the Full Bench of the Supreme Court in the case Photos Photiades of Nicosia etc. v. Takis Photiades etc.
(1988)3 15 C.L.R. 20S4. I am of the opinion that the decision of the Registrar of Companies in the present case falls within the domain ofPrivate Law and assuchisnot justiciable inthesense ofArticle 146.1oftheConstitution.Inthatappealitwasdecided that the character of the act of registration of a partner under 20 Section 56
(1)of the Partnership Law.Cap. 116.falls within the domain of the Private Law and it isnot justiciable in the sense of Article 146.1 of the Constitution. It is a decision of the Full Bench of the Supreme Court and it isbinding upon me because in the present case we are concerned with the refusal of the 25 Registrar to make corrections in the application of the applicants for the registration of their partnership. Again, if it were to be heldthat weare not concerned with the registration of a partnership but about corrections in the form for the registration of a partnership.Irespectfully adopt the reasoning 30 of the Photiades case (supra)and Ialsofind that the subjudice decision falls within the domain of Private Law and as such is not justiciable. Having decidedthispoint which disposesoftherecourse Ido 35 not propose to examine the substance of the case. For these reasons I dismiss the recoursebut with no orderfor costs. Recourse dismissed.No orderas to costs. 218 40