clr/1989/1989_3A_342.pdf

(1989)19S9March IS IKOL'RKISJ.J INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION CHARALAMBOS PAPACHARALAMBOUS ANDOTHERS. Applicant. v. THE REPUBLIC OF CYPRUS.THROUGH THE REGISTRAR OFCOMPANIES. Respondent. (Case-Vo.121/88) Acts or decisions in the sense of Art. 146.1 of the Constitution — Partnership — Registration of. rejeciion of application on the ground thatproposed name wasundesirable —Outsideambit of Art. 146.1 of the Constitution. The applicant applied for the registration of a partnership, bin the application wasrejected by virtueofsection 56

(1)ofthe Partnershipand Business Name Law Cap. 116.The Court, in dismissing the recourse. followed recent authorities thai the registration of partnerships is in the domain of private law. Recourse dismissed. ;Vo order as to costs. Casesreferred to: Koupcpa v. Municipal Committee of the Municipal Corporation of Limassoi andAnother (I96S) .? C.L.R.

1. Photiades v. Photiadcs (19SS)3C.L.R. 20S
2. 342 3 C.L.R. Papacharalampous & Others v. Republic Recourse. 5 Recourse against therefusal of therespondentto register the applicants as a partnership under the name "ΡΑΔΙΟ ΑΥΤΟΔΤΑΘΕΣΗ". A. Haviarus.for the Applicants. 10 L. Koursoumbci(Mrs). Counsel of the Republic B, for the Respondents. Cur.adv.vult. KOURRIS. J. read the following judgment. By the present 15 recourse applicants pray for a declaration that the decision of the Registrar of Companies contained in his letter to the applicants dated 8.12.
3. whereby he refused the application of the applicants dated 2.12.1987 for their registration a.s a partnershipunderthename'ΡΑΔΙΟ- ΑΥΤΟΔΙΑΘΕΣΗ* isnull 20 and void andof no effect whatsoever. The facts which gave rise to this recourse shortly are the following: 25 30 Applicants on2.12.1987filed FormO/EIfor the registration of the partnership underthename 'ΡΑΔΙΟ ΑΥΤΟΔΙΑΘΕΣΗ' with the object of operating a radio broadcasting business. The respondent Registrar addressed aletter to the advocates of applicants dated 8.12.1987 whereby he rejected the application for the registration of the partnership under the name 'ΡΑΔΙΟ ΑΥΤΟΔΙΑΘΕΣΗ' by virtue of s.55 of the Partnership and Business Names Law Cap.
4. (See appendix 1 to theopposition). 35 Section 55 reads as follows:*'No firm or business name shall be registered by aname which in the opinion of theRegistrar is undesirable." 40 Applicants, feeling aggrieved, filed the present recourse and their main grounds are that the sub judice decision lacks due 343 Kourris, J. Papacharalampous& Others v. Republic

(1989)reasoning, respondents failed to carry out a due inquiry that they exercised their discretion in a defective manner andthat they acted in abuse of power. On the other hand, counsel for the respondents contended 5 that the sub judice decision was lawfully taken in accordance with the provisions of the relevant legislation and the correct exercise of their discretion,having taken into consideration all relevant material. 10 Before Iexamine thesubstance of thedecision, Ipropose to examine whether Ihave jurisdiction to entertainthe sub judice decision although at the hearing of the case the question of the jurisdiction of this Court hadnotbeen raised bv either side. 15 Iam of theviewthatIhavetoconsiderthisaspect ex proprio motu because thecompetenceof thisCourtunderArticle 146of the Constitution is a matter of public law and it should not be exercised unless the conditionsenabling its exercise exist. This is supported by the case of Kalliope K. Koupepa v. The 20 Municipal Committee of the Municipal Corporation of Limassol and Another

(1968)3 C.L.R. 496, where Triantafyllides, J.(as hethenwas) statedthefollowing at p.500:"At thehearingof thecasethequestion of thecompetence 25 of this Court to deal with the validity of the subject matter thereof has not been raised by either side. But, I have to consider this aspect, just thesame, because thecompetence under Article 146of theConstitution is amatterof public law and it should not be exercised unless the conditionsenabling 30 its exercise do exist." In the case of Photos Photiades of Nicosia etc. v. Takis Photiades etc.

(1988)3 C.L.R. 2084; it was decided that the characterof theactof registration of apartnershipunders. 56

(1)35 of the Partnership and Business names Law. Cap. 116, falls within the domain of the private law and it is not justiciable in the sense of Article 146.1 of theConstitution. Itis adecision of the Full Bench of the SupremeCourt andit is binding upon me because in thepresent case we are concernedwith therefusal of 40 the Registrar to register a partnership underthe name 'ΡΑΔΙΟ -ΑΥΤΟΔΙΑΘΕΣΗ' by virtue of s.56(l) of the Partnershipand 344 3C.L.R. Papacharalampous & Others v.Republic Kourris, J. BusinessNamesLawCap. 116andthedecision of theRegistrar of Companies in the present case falls within the domain of private law and as such isnot justiciable in the sense of Article 146.1of the Constitution. Having decided this point, which disposes of the recourse, I donot propose to examine the substance of thecase. For these reasons, Idismiss the recourse, but with no order for costs. Recourse dismissed No orderas tocosts. 345