(1989)1989April 11 (KOURRIS,J.] INTHE MATTER OF ARTICLE 146OFTHE CONSTITUTION ANDREASTHEOCHARIDES, Applicant, v. THE REVIEW PERMITS AUTHORiTY, Respondent. (CaseNo.788/85) Due inquiry — Refusaltogrant alicenseto own andmanage 15 self-drive cars(Z) on theground that therespondents werenot satisfiedthat the applicants intended to carry on the transport business as there main occupation (See section 5(a) of the Motor Transport Regulation Law, 1982-1984)—Said conclusionnotborneoutby thematerialinthefile— Subjudice decision annulled. 5 Motor transport — The Motor TransportRegulation Law, 1982-1984 — Hierarchicalrecourse — Nature and characterof — Tsouloftas and Others v. TheRepublic
(1983)3C.L.R. 426followed. 10 Having reached the conclusion that the material in the file contradicted respondent's finding that the applicants did not intend to have transport business astheir main occupation, the Court annulled the subjudice decision. 15 Subjudicedecisionannulled. No orderas tocosts. Casereferred to: 20 Tsouloftasand Othersv.Republic
(1983)3C.L.R.
- 428 3C.L.R. Theocharides v.The Rev.Perm. Authority Recourse. Recourse against the decision of the respondent upholding the decision of the Licensing Authority to refuse to applicant 5 licencesfor thehireof 15cars without adriver. E. Lemonaris,for the Applicant. 10 M. Tsiappa (Mrs), Counsel of the Republic B, for the Respondent. Cur. adv. wit. KOURRIS, J. read the following judgment. By the present 15 recourse,the applicant seeks adeclaration of theCourt that the Decision of the respondent authority, dated 24.5.1985, communicated to the applicant by a letter dated 1.7.1985, by which the respondent Authority had upheld the Licensing Authority's decision of 12.2.1985,torefuse toapplicantlicences 20 for thehireof 15 carswithout adriver,isnullandvoidandof no effect whatsoever. Applicant appliedon7.7.1984 totheLicensingAuthority for a licence to own and manage 15 self-drive cars commonly 25 known as"Z"cars.Arepon dated20.7.1984 was subsequently prepared with regard to the said application by the Nicosia District Transport Inspector and the Licensing Authority examinedtheabove-mentionedapplication atitsmeetingof
- 2.1985 anddecidedto refuse to applicant licencesfor thehireof 30 carswithout a driver. Byletter dated22.2.1985,the Licensing Authority communicated to applicant its above-mentioned decision. Applicant, feeling aggrieved with the decision of the 35 LicensingAuthority,filed ahierarchical recourse tothe Permits Review Authority under s.4(a) of the Motor Transport Regulation Laws, 1982and 1984,Law 9.82 and Law84/
- The hierarchical recourse was heard by the Permits Review 40 Authority at its meeting of
- 4.1985 and after taking into account allthefacts and circumstances of thecase,it decided at itsmeeting of24.5.1985,to dismissthehierarchical recourse. 429 Kourris, J. Theocharides v. The Rev. Perm.Authority
(1989)The Decision of the Permits Review Authority dated 24. 5.1985, wascommunicatedtoapplicantbyletterdated1.7.1985 and against this Decision the applicant filed the present recourse. 5 The sub judice decision is to the effect that the Permits Review Authority have not been convinced thattheapplicant intends to carry on the transport business as his main occupation. (See Appendix A to the application.) In other words,thePermitsReview Authority have notbeenconvinced 10 that applicantsatisfied therequirementsofs.5(a) of the Law. Ithinkitispertinentatthisstage toset outs.5(a)of theLaw: "Ουδεμία άδεια οδικήςχρήσεως θαχορηγείταιαναφο- 15 ρικώς προς οιονδήποτεόχημα δημόσιας χρήσεως προς εκτέλεσιν οιασδήποτεοδικής χρήσεως δι' ην απαιτείται τοιούτονόχημαδυνάμειτωνδιατάξεωντουπαρόντοςΝό μου,εκτόςεάνο ιδιοκτήτηςτούτουπείσειτηνΑρχήΑδει ώνότιμετέρχεταιή προτίθεταιόπωςμετέλθειτηνμεταφο- 20 ρικήνεπιχείρησινωςκύριον αυτούεπάγγελμα." In English itmaybe translatedas follows: "Noroadservice licenseshallbegrantedinrespect ofany 25 public service vehicle for theservice of any roadfor which such vehicle is required under the provisions of this Law, unless its owner convinces the Licensing Authority thathe carries onorintendstocarry onthetransportbusiness as his main occupation." The nature andcharacterof hierarchical recourse was dealt with inthecaseof A. Tsouloftasand Others v.TheRepublic of Cyprus
(1983)3C.L.R.426. Itwasheldthatthetestbywhich the validity of the decision of the Permits Review Authority 35 must be judged as thesame asthatapplicable to the Licensing Authority. The sub judice decision was issued in exercise of statutory powers with whichtherespondentAuthority isvested bys.4(A) 40 of the MotorTransport Regulations 1982 and 1984 (Law 9/82 and 84/84). Thewording of s.4(A)
(3)is similar tothe wording 430 30 3 C.L.R. Theocharitles v.The Rev. Perm. Authority Kourris, J. of the abolished section 4
(2)of Law 9/82 and s.6
(2)of the abolished Motor Transport Regulation Laws, 1964-1975. The Minister's powers under s.6
(2)were expounded' in the 5' Tsouloftas case (supra) whereat page431it wasstated: 10 15 "Ahierarchical recourseisnot ajudicialproceedinginany sense. It is not intended to review the correctness of the hierarchically subordinated organ's decision by reference to the soundness of the reasoning propounded in respect thereof, but to establish a second tier in the decision-taking process, designed to eliminate mistakes as well as abuse of authority bysubordinates... Both organsinthehierarchy are charged with the same duty - to promote the objects of the Law bythe application of itsprovision in particular cases." Andat p.432it isstated: 20 25 "The test by which we must judge the validity of the decision of the Minister is the same with that applicable to the LicensingAuthority. It isthis:Whether itwasreasonably open to the Minister, in view of the provisions of the Law, andthe material before him,to decide ashe did." Counsel for applicant invitedthe Courtto annul the decision oftherespondents becausetheyhaveactedcontrary tothe facts which were before them and exercised their discretion wrongly and thus the decision of the respondents iscontrary to law and inabuse of power. 30 I have considered the arguments of both counsel and the material which was before the respondents, and I think the conclusion of the respondents that applicant did not intend to carry on the transport business as his main occupation, is not 35 borne out by the material before the respondents. On the contrary, there wasevidencetothe effect that applicant hadthe financial means to carry on "Z" car business as his main occupation. In point of fact, there was evidence before the respondents that he had a notice deposit account with the 40 CyprusPopular Bank Ltd.of£14,600.-(SeeAppendix 9). Ifthe respondents wanted to query theintentions of the applicant on thesubject,theyshouldhaveinquiredfurther intothematter.As 431 Kourris, J. Theocharides v.The Rev. Perm. Authority
(1989)it is,theirconclusionsarecontradictedbythematerial inthefile and, consequently, they could not properly invoke the provisions of s.5
(9)of the Law as proper justification for refusing the application. 5 For these reasons, I am satisfied that the respondent Authority exercised their discretion wrongly. Their decision is contrary to law and in abuse of power and the recourse is, therefore, allowed, and the sub judice decision isset aside with no order for costs. Subjudice decisionannulled. No orderastocosts. 432 10