(1989)19S9February25 [A. LOIZOU,P.} INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION DEMETRIS M.PAPAGEORGHIOU ANDOTHERS. Applicants, v. THE AGRICULTURAL INSURANCE ORGANISATION. THROUGH ITSADMINISTRATIVE COUNCIL, Respondents. (CaseNo. 129/87) Judicial control — Assessment offacts by administration — The Court will not interfere, so long astheredoesnot exist amisconception offact or laworabuseof power. Judicial control — Appreciation of the weightof therealfacts constituting thereasoning— Court willnot interfere solongastheredoesnot exist amisconception offact orlaworabuse of power. 5 Applying the aforesaid principles, the Court in this case dismissed the recourse, whereby the applicants had impugned the reassessment 10 made by the respondents of damage sustained to their vineyards by reason of hail. Recourse dismissed. No order as to costs. 15 Casesreferred to: Republic v. Georghiades
(1972)3 C.L.R. 594, 20 MichaelidesandAnother v.Attorney General
(1978)3 C.L.R. 285, 264 3C.L.R. Papageorghiou &Others v. Agric.Insur. Org. feronymides v.Republic
(1988)3 C.L.R. 2657, Eraclidou v.Republic
(1968)3 C.L.R. 44, 5 Georghiou andAnother v.Municipality of Nicosia
(1973)3 C.L.R.
- Recourse. Recourse against thedecision of the respondents to reassess 1ο thedamage sustainedby applicantstotheirvineyards inthearea of Peyavillage. K. Talarides, for the Applicants. 15 Ch. Kyriakides. Senior Counsel of the Republic, for the Respondents. Cur.adv.vult. 20 25 A. LOIZOU,P.readthefollowing judgment.Theapplicants in this recourse pray for a declaration that the decision of the respondent Organisation by means of which it re-assessed the damagesustainedby theapplicantstotheirvineyards inthearea of Peya village, is null and void and of no legal effect whatsoever. The facts whichgave rise tothis recourse arethe following: 30 35 40 Applicants 2 and 3,are the owners of an area of land of an extent of thirtyseven donums which is planted with vines, and which since 1984 has been leased to applicant 1,for aperiodof fifteen years; an area of twentysix donumsis plantedwith vines of the "soultanina"variety. As aresult of hail which fell onthe 14th May, 1986, the said area of twentysix donums was damaged completely. Undersection 20 of Law 19/77in case of damage by hail,compensation isgranted totheproducers. The procedure for ascertaining the damage is governed by the Agricultural Insurance Regulations,
- Under these Regulations an assessment is first made by one valuer whose assessment is posted at a conspicuous place of the village concerned. As against this assessment an objection may be lodged andinsuchacase areassessment ismadeby two valuers. 265 A. Loizou, P. Papageorghiou & Othersv.Agric Insur. Org.
(1989)Applicants submitted their"Damage declaration'' inrespect oftwentysix donumsofvinesofthe"soultanina'varietyonthe 16th May.
- The assessment of the damage was made between the 30th May, 1986to 11th July, 1986.and after the findings oftheassessmenthadbeencompletedtheywereposted 5 on the 5th September
- The applicants submitted an objection against the assessment on the 13th November 1986 andwithinthetime-limitoftendaysasprovidedbytherelevant Regulation
- The re-assessment was carried out by two valuers. In the course of the re-assessment it wasascertained 10 thatthenumberoftheexistingvine-plants-wassmallerthanthe one whichcorresponds to theareadeclaredbyapplicants,with regulardistancesofplanting9X9feet.i.e. 178vinesperdonum. For theestimation ofthe total production of aplot thereis 15 first estimated the average production per vine-plant, and thereafter is estimated the production of the whole numberof vineplants. In this way what is significant is the total number of 20 vineplants instead of the area of the plant. The officers who madethere-assessmentestimated,forpurposesofuniformityof the assessment that the normal number of vine-plants per donumwasonehundredandseventyeightplants. Thereforethe extent of applicants'plot inrespect of "soultanina'Variety was 25 reduced from twentysix donumstotwentyfourdonums. Regarding the percentage of the damage the re-assessment arrivedatthesaidpercentage,havingestimatedapercentageof 10% as quantity damage, a percentage of 20% to 30%,that couldbedisposedtothelocalmarket aswasdonebytheother producers whoownvineyardsinthesamearea,andapplicants could not be treated differently, as well as the value of the remainder 60%to 70%of theproduce whichthey disposed to the factories. Themaingroundonwhichtherecoursewasfounded wasthe inaccuracy ofthefindings ofthere-assessment. Inotherwords "misconception of fact". This misconception refers to three factors: (a) theextent ofthevineyard 266 30 35 40 3 C.L.R. Papageorghiou &Others v.Agric. Insur. Org. A. Loizou, P. (b) the quality of "soultanina" (c) the percentage ofthe damage. 5 In effect the ground put forward by learned counsel for the applicants refers to the assessment of the facts by the administration. In Republic r. Georghiades
(1972)3 C.L.R. 594 (F.B.) at pp. 692-695. I held that the administration's assessment of facts is not subject to judicial control. The 10 relevant passage appears at p.695 andreads: 15 20 "In the present case extensive argument was heard regarding the existence or not of facts or the reasonableness of the inferences drawn therefrom. For thereasons given, I donot find itnecessarytogointothedetails oftheevidence. It isenough to say that there wasample material before the Commission on which it was entitled to arrive at the conclusions that it did. It has been said repeatedly that this Court willnot interfere andsubstitute itsviewintheplaceof that of the Commission, having itself (the Commission) weighed the probative effect of same and having correctly arrived at the conclusion that those facts andcircumstances, as its duty was to consider, amounted to the disciplinary offences for which theapplicant wasfound guilty." 25 (See. also Michaelides and Another v. The Attorney General
(1978)3C.L.R.285). Moreover in this casethe material referred to in the written 30 address of learned counsel for the applicant wasnot before the re-assessor. Such being the position, relevant is what I said in Ieronymides v.TheRepublic
(1988)3C.L.R.2657. 35 40 'The usefulness of the valuation submitted by the applicant, andwhichwasfor thefirst timebrought to lightin the course of the present proceedings, is as to whether in appreciating the facts of the case, the respondent Commissioner actedunder any misconception of fact orlaw or in abuse of power, that is in circumstances in which this Court wouldbejustified to interfere with hisappreciation of thefacts orthedetermination ofthemerits. Not being before the Respondent Commissioner when the subjudice decision 267 A. Loizou, P. Papageorghiou &Othersv.Agric.Insur.Org.
(1989)was reached, it should otherwise be ignored as a review by the Court is confined to the evidence that was before the Respondent Commissioner at the time he reached the sub judice decision - vide Christofides v. Republic
(1984)3 C.L.R. 1454at 1459-1460." 5 On this last point namely that the appreciation by the administration of factual allegations or elements and of the material in thefile,isnot subject tojudicial control,solongas there doesnot exist amisconception offact orlaw,orabuseof 10 power,nor issubject tojudicialcontroltheappreciation ofthe weightoftherealfactsconstitutingthereasoning. Referenceon this point may be made to Zacharopoullos. Sympliroma Nomologhias (1935-1952),Vol.1. p.42,paras,264and288and the Decisions of the Greek Council of State from which this 15 principleisdrawn. Moreover on findings of a technical nature by the administration; as it is the situation in the present case, the Court can only examine whether in making such findings the 20 administrative organ concerned hasacted in a proper manner from the point of view of Constitutionality, legality and the principlesgoverningexcessorabuseofpowers(SeeEraclidou v. The Republic
(1968)3 C.L.R. 44, and Georghiou and Another v.TheMunicipality ofNicosia
(1973)3C.L.R.53.) 25 Inviewofalltheabove,Iholdthattheassessmentofthefacts as made by the administration cannot be made the subject of judicialcontroltherebeingneithermisconception offactnorof lawnoranyabuseorexcessofpowerandthereforetherecourse 30 must fail, and ishereby dismissed. There willbe,however, no orderastocosts. Recourse dismissed. No order as tocosts. 35 268