clr/1989/1989_3A_63.pdf

(1)b\·DistrictOfficerdated27/11/85setting finaltime limit—Appointment of temporary Boardupon expirationof suchtimelimn, imposition oftherefusefeesandratesbysuchtemporary Board— Objectionsongrounds ofirregularity ofprocedureandexcess ofpower — District officerissuedtheaforesaidorderandappointedthe Temporary Boardinvirtueofhispowersundersection S

(3). Irregularity — When considered asmaterial, leadingto annulment — Test 63 Fesas &Others *. Republic

(1989)applicable— Ifn isofsuch importancethatcan affectthecontentsotthe actm question Composite administratecact —Recoursedirectedatfinalact —Putsinissue validity of any preparatory or intermediate act — Recourse against 5 decision imposing fees and rates — Applicants not prevented from challenging validity of previous order limiting time within which a preliminary act should have been performed or the validity of the appointment of themembers oftheBoard whichissuedthesubjuace act 10 The Public Health Board of Nikitan \illage failed until as late as November 1985 from compiling a list of occupiers foi the purpose of imposing Refuse Feesand Public Health Rates The District Officer, as a icsult, issued an order, setting a time limn 15 within which the Board should compile the list Asthe Board once again failed 10make the list the District Officei appointed aTemporan Board which made the list and imposed the fees and rates in question The applicants filed objections with the District Officer on grounds of irregularis, wrong procedure and excess of power The objections were 20 dismissed Hence the present recourses Therecourses of several of theapplicants,whohadpayedthe fees and rates without protest or reservation «ere dismissed asabated The Court refused to dismiss the recourses on grounds that the respondent was not 25 the proper one Inthisrespect the Court proceeded e.xpropno motu and amended the title of the recourse The Court. ha\mg anal^cd the facts in the light of the relevant sections of the Law and the regulations (\ide the second of the 30 hercinabo\e Headnotes) leached the conclusion that the District Officer did propcih exeicise hispowers vested in him under theLaw The Court considered am irregularis relating to the senice of the order limiting thetime for compilation of the list immaterial Fmalls.the 35 Court did not accept the contention that the lecouises should ha\e been dismissedon thegroundthat the\ werenot directedatthesaidorderorthe tcmpoian appointments Rccouiscs dismissed So order as 10 4 0 costs 64 3C.L.R. Fesas &. Others \. Republic Casesreferredto Chnstodoulou \ Republic 1 RSCC I 5 MinisterofFinance ν PublicSennce Commission

(1968)3CLR 691 Cvprus Transport Co Lidand Another \ Republic and Another

(1969)3CLR501 10 Lambrakis\ Republic

(1970)3 CLR72, HadjiPapasvmeou \ Republic

(1984)1 CLR 1182 Peleticoltd \ Republic

(1985)!CLR 1582 15 Sekkidcs \ Republic (I9SS) TCLR2Π6 lendes \ Republic(PublicScn'icc Commission)

(1976)1 CLR 9 20 25 30 35 40 Recourse. Recourse against the dismissal of applicants' objection/appeal against the imposition of refuse fees and public health rates for the villageof Nikitan for theyear 1985 Μ Chnstofides. for the Applicants CI Theodoulou Senior Counsel of the Republic, for the Respondents Cur ad\ vult STYLIANIDES. J read the following judgment Fort\ resident occupiersof Nikitan villagefiled thisrecourse Therelief prayed is a declaration that the act, whereby their objection/appeal against theimposition of refuse fees andpublic health rates for the village of Nikitan for the year 1985 was dismissed, is null andvoid andof noeffect whatsoever Before the hearing of this recourse all applicants, except applicants Nos 19, 25 and 39. paid the aforesaid lees and rates without anv iesenation and indeed the\ did not piosecute am furthei theirsuch recourse Therecouise of the 37 applicants is 65 Stylianides. J. Fesas & Others v. Republic

(1989)thereby abated asthey accepted the complained of act and thev paidtheirdue. In the recourse Respondents appears: "The Republic of Cyprus through the Ministry of Interior"'. It was objected by 5 counsel who appeared for the Respondents that the Ministryof Interior has no locus standi and it could not be made aparty·as it did not take part in the sub judice decision and the recourse should be dismissed. 10 In Administrative Law a recourse is aimed at the particular administrative decision concerned, with the view to bring it under proper judicial review, and not aimed at the organ responsible for it. The partiestotherecourseareofasecondary importance, in the sense that they are only heard in support or 15 against thevalidityofsuchactordecision.Theprocessofjudicial review cannot be frustrated by any secondary consideration. such asthe exact titleof the proceedings. In any case arecourse made against an act, decision or omission of an organ of Government shouldbe instituted against "TheRepublic,through 20 such organ" - (see Miltiades Christodoulou r. The Republic of Cyprus, through The Collector of Customs. IS'icosia 1 R.S.C.C. 1.9; The Minister of Finance v.The Public Service Commission (196S) 3CLR. 691.696.697: Cyprus Transport Co. Ltd. and Another (ISO. 1) v. The Republic of Cyprus, 25 through 1. The Minister of Communications and Works, 2. The Permits Authority

(1969)3 C.L.R. 501. 502; IS'icos Lambrakis v. The Republic of Cyprus, through The Educational Service Committee

(1970)3 C.L.R. 72. 73: Theofano Thoma HadjiPapasymeou v. The Republic of 30 Cyprus, through the District Officer of iS'icosia

(1984)3 C.L.R. 11S2). In Miltiades Christodoulou (supra) the respondent in the recourse was: "Polykarpos Giorgadjis. Minister of the Interior". The Supreme Constitutional Court after hearingthecase,before givingjudgment, ex proprio motu. 35 decidedtoordertheamendmentofthetitleoftheproceedings so as to bring it intoconformity withthetrue facts of thecase. The record reads:*'.... The Court isof the opinion that such amendment at this 40 stage does not prejudice either the parties concerned or the interestsofjustice.TheCourttakesthisopportunity of stating 66 3 C.L.R. Fesas &Others v. Republic Stylianides, J. that in proceedings of this nature the proper respondent should be the Republic, represented through the appropriate organ, authority or person. The amended title, therefore, shouldread asfollows: 5 'BETWEEN: Miltiades Christodoulou ofTsada. Applicant 10 AND The Republicof Cyprus,through the Collector of Customs.Nicosia, 15 Respondent'" In Peletico Ltd. r. TheRepublic of Cyprus, through The Ministry of Commerce and Industry (19S5) 3 C.L.R. 15S2. thesubjudicedecision wastakenbytheCouncilof Ministersand 20 not by the Ministry of Commerce and Industn". which simph·" communicated such decision to the applicants. The Court, following Christodoulou case (above), in the course of delivering Judgment, directed the amendment of thetitle of the proceedings. 25 In the present case, the Respondents in the title are: "The Republic through the Ministry of Interior". The appropriate organ, however, is the District Officer of Nicosia. Counsel for the Republic was heard in relation to the validity of the 30 challenged act. An amendment atthis stage isnot prejudicial to anyone concerned or the interests of justice. The amendment title,therefore, should read as foilows:"BETWEEN:35 Costas Fesas andOthers. Applicants AND 40 TheRepublic ofCyprus,through The District Officer of Nicosia. Respondents" 67 Stylianides. J. Fesas &Others v. Republic

(1989)Thesalient facts of thecaseare asfollows:NikitariisavillageinthedistrictofNicosiainwhichthePublic Health Law. Cap.

1. is applicable. Regulations were made under section 9 of the Public Health (Villages) Law. Cap. 259, 5 and the amending Law Sl/63 and published in the Official Gazette. No. 785.Supplement No. III. dated 3rdApril, 1970.p.
2. The Public Health Commission of Nikitan in 1985 was 10 composed of five members, the Chairman, the Vice-chairman andthreemembers. Thethreemembers refused toproceedwith the imposition of the publichealth rates andrefuse fees for 1985 andthepreparation of theoccupiers' list. TheAssistant District Officer atameetingofthePublicHealthCommission ofNikitari. 15 heldon 17thNovember. 19S5.askedtheCommission to prepare thelist ofoccupiers asrequired bysection 8and Regulation
3. Thethree members of theCommission saidthat theywould not do so until after the parliamentary elections, which would have been held on 8th December,
4. 20 The District Officer on20thNovember. 1985.issued an order under section 8

(1). that the lists for occupiers' rates and refuse fees undertheLawandtheRegulationsshouldbemadeuntil27th November. 1985.The said order wascommunicated directly by 25 letter addressed to the three members of the Commission of Nikitari. namely Elias Charalambous. Costas Kleanthous and Panayiotis Katides. and copy thereof was sent to the Chairman and the Vice-chairman of the Commission. In the saidletter he informed them that,iftheyfailedtoperform theirdutywithinthe 30 time limit,hewouldappoint atemporary Board for the purpose and they would be required topay any expenses incurred. As the default continued, on 29th November, 1985. the District Officer of Nicosia appointed, under section 8

(2)of 35 the Law. a temporary Board consisting of Kyriacos Patsias. a District Inspector, and Diomides Kypnanou. the Chairman of the Public Health Commission, to prepare the lists for the rates, under the Public Health Law. and the refuse fees for 1985 to perform that duty according to the Law. 40 The lists were prepared and posted at conspicuous places in the village. 6S 3 C.L.R. 5 10 Fesas &Others v. Republic Stylianides, J. Seventy-five occupiers appealed to the District Officer in writing on 3rd December.

1. on the sole ground that the imposition of rates and fees was "αντικανονική και παράτυπη και καθ' υπέρβασιν εξουσίας"(irregular, contrary toprocedure andin excess of power).Their such appeal was examined by the District Officer who rejected it and informed the objectors accordingly in writing on 27th December,
2. (See Appendix D). Hencethis recourse. Counsel for the applicants submitted that the act complained of was notvalidinthat:- 15 20 (a)There was no default by the Public Health Commission of Nikitan intheperformance of their duty,and (b)The order of the District Officer limiting the time for performance of such duty was contrary to the provisions of the Law. Regulation 106provides:- 25 "On or before 1st July, in each year the Commission prepares alist (referred as 'thelist of occupiers') showing the name,occupation, place of residence of eachoccupier andthe amountof theannualrateimposed oneach oneof them. The occupiers' list shall bear date and shall be signed by the Chairman of the Commission.'' 30 Certified copies of thislist shall be posted at two conspicuous places inthevillage. 35 40 It is plain thatthe Public Health Commission of Nikitari was in default. As late as 17th November, 1985, when the Assistant District Officer visited their village, they have not prepared the occupiers'list.On27thNovember, 1985,whentheorder limiting thetime was made andtheletter aforesaid was sent,they didnot state thatthey refused toprepare thelistbut they would perform such dutyafter theparliamentary elections.Having regard tothe plain provision of theRegulation thatthelistsmust be prepared on or before 1st July, the Commission was in default in the 69 Stylianides, J. Fesas &Others v. Republic

(1989)performance oftheir dutiesimposed by Law. The relevant part of section 8

(1)relating to the second complaint reads:5 "... The District Officer may make an order limiting the time fortheperformance ofthedutyinrespect ofwhichthe default hasbeen made." TheDistrict Officer madeanorderlimitingthetimeuntil27th 10 November, 1985. He communicated his such order by a letter addressed to the three members of the Commission who were not collaborating and who were the cause of the default. Copy ofsuchletterwassenttotheChairman andtheVice-chairmanof the Commission. 15 The District Officer complied with the Law by making an orderlimitingthetimefortheperformance ofthedutyinrespect of whichthe default hadbeenmade. 20 The only forms and procedures which are material are those laid down in a law which expressly provides that in case of noncompliance with them, same will lead to annulment. (Andreas Sekkides and The Republic of Cyprus

(1988)3 C.L.R.2136). 25 With regard to irregularities it was held in Charalambos Michael Ierides v. Republic (Public Service Commission)

(1976)3C.L.R. 9,confirmed onappealbytheFull Bench

(1980)3 C.L.R. 165.that only a material irregularity can lead to the 30 annulment of the relevant administrative process. (See, also, Stassinopoulos, "The Law of Administrative Acts"

(1951)pp. 229,230). The test whethertheirregularity ismaterial or not is whether the omission or non-compliance was of such importance that can affea thecontents of theadministrative act 35 or decision. There is no provision in the Law how this order should be communicated. 40 In the present case, even if the communication to the members of the Commission ofthe order limiting the time was 70 3 C.L.R. Fesas &Others v. Republic Stylianides, J. irregular,again suchirregularity didnot affect eitherthisorderor the order made under section 8

(2).whereby atemporary Board consistingoftwopersons wasappointed andwhichpreparedthe lists,subject matter oftheobjection to the District Officer. 5 All the members of the Commission were informed of the time limit ordered by the District Officer, thus the safeguards intended and the requirements necessary for the legality of the act were not affected. (M. Stassinopoulos "The Law of 10 Administrative Acts"

(1951)(supra).) It was submitted by counsel for the Administration that this recourse is untenable as the applicants did not seek the annulment either of the order of20th November, 1985,limiting 15 thetime,or theorder of appointment of thetemporary Board. I do not agree with such submission. The final act is the decision of the District Officer whereby he determined the objection. Theactchallenged isacomposite actandallprevious 20 preparatory or intermediate acts merge into the executory act impugned bythisrecourse. In view of the foregoing, this recourse fails and is hereby dismissed. 25 With reluctance, Imakeno order asto costs. Recourse dismissed. No orderas tocosts. 71