clr/1989/1989_3A_83.pdf

(1989)regards car JI.

1. Such decision had never been taken. Despite this fact, the Court dealt with the substance of the case (see the first of the above Hcadnotes). The Court dismissed the recourse for the reasons indicated in the second of the above Hcadnotes. 5 Recoursedismissed. £50 costs in favour ofrespondent. Recourse. 10 Recourseagainst thedecision of therespondent torefuse to licenceapplicant'smotorcarJL171asaruraltaxiandtodismiss his hierarchical recourse against the decision of the Licensing Authority. 15 S.Karapatakis,fortheApplicant. M. Tsiappa, (Mrs).Counsel of the Republic B, for the Respondent. Cur. adv.wit. 20 SAWIDES,J.readthefollowingjudgment.Theapplicantin thisrecoursepraysfor thefollowingrelief: Adeclaration oftheCourt thattheactand/ordecisionofthe respondent dated 25th February, 1987 whereby it refused to licence his motorcar JL 171as arural taxi and its decision to dismiss the hierarchical recourse of the applicant against the decision oftheLicensingAuthority for thesaidvehiclearenull 30 andvoidandofnolegal effect. Thefacts ofthecasearebriefly asfollows: Theapplicant in 1978wasgrantedapermitbytheLicensing 35 Authorityfortheuseofhiscarunderregistration No.JL 171 as a rural taxi stationed at Xylotymbou village. After an investigation carried out in 1979whichledto ahearing before the Licensing Authority which was concluded on the 20th March, 1979,thelicenceinrespectofthesaidcarwassuspended 40 bytheauthority duetothefact thattheapplicantwasusingthe saidcarcontrarytothetermsofthelicencegrantedtohim. As 84 25 3 C.L.R. 5 Hadjioannou Λ. Republic Sawides, J. a result the applicant comerted his car into one of private use and on the 15th May. 19S0 he submitted an application for a road fund licence describing the said car as ot private use and paid therele\antfees lor aprivate car In 1981 hesold thesaid car to Kypros Loizides Estates. Ltd who in his turn applied for the renewal of the road fund licence for 1981 andcontinuedso doing thereafter in respect of it as acar for pn\ate use On the 20th Ma\.
2. the applicant submitted an 10 application to the Licensing Authonn for the replacement of his car JL 171 with a new one of the same type, also to be stationed at Xylotymbou village and the transfer of the licence for arura1 ta\i from cai JL 171 to thenew car 15 20 The Licensing Authority haung earned out an inquiry into the matter as appearing in the rele\ant file, decided to dismiss applicant"·> application on the grounds that(a)The vehicle in question was not issued with a rural taxi licenceand (b)The needs of the village were sufficiently sened b\ the existing taxis 25 30 As a result the applicant filed on the 30th Januan. 19S6 a hierarchical recourse to the respondent authont\ which held a hearing on the 11th Februan. 19S
3. at which the applicant and all interestedparties were in\itedtoattend Infact theapplicant appearedwith hisadvocate but noneof theinterestedpartieson whom notice of the hearing was servedattended Alter hearing the applicant as well as his ad\ocate the respondent cameto thefollowing decision 35 40 "The Reuew Licensing Authority bearing in mind the existing legislation and all the facts of the case which have been put before it and having studied all the material in the rele\ant files as well as what was said on behalf of the applicant decides to confirm the decision of the Licensing Authority" As aresult the applicant filed the present recourse 85 SavWdes, J. Hadjioannou \. Republic

(1989)It is evident both from thepraver andthefacts set out inthe recourse that there is a misconception as to the relief sought The decision of the Licensing Authority wInchwaschallenged by the hierarchical recourse totheReview Licensing Authority'and the decision of thelatter ha\e no relation at all with the prayer 5 sought as theprayer refers to arefusal togrant to theapplicant a licence for a rural taxi for carJL 171 The application, as earlier mentioned, was "for the replacement of taxi underregistration TJL 171 with anew one" 10 and thedecision taken was onthesubstance of suchapplication Therefore, on theface of thepraver in the recourse,the proper decision is not being challenged Ne\ertheless as it emerges from the written addresses hied andthearguments advancedb> counsel foi applicant and counsel foi respondent they both 15 argued thecase ontheassumption thattherecourse was directed against the decision oi the Review Licensing Authority refusing the transfer of arural taxi licence from carJL 171 to anew one Therefore, in the exercise of my discretion andbearing inmind the well established principles emanating from the case law of 20 this Court that an administrative Court will look to the substance of a case and in the exercise of us discretion willnot allow formal defects to defeat the substance I ha\e decided to deal with the substance of this case ignoring the defect in the prayer 25 It is common ground that thelicence of carJL 171 as arural taxi was suspended in the year 1979 after a decision of the Licensing Authority thatthesaidcar was being used in violation of the conditions of its licence andever since such car has been 30 used as a private one and its licence was renewed annually on that basis Itis also anundisputedfact thatin 1981 theapplicant sold car JL 171 to athird party ande\er since the applicanthad nothing to dowith it. 35 When the applicant submitted his application for the ιeplacementof carJL 171 with anew onehewas nottheowner of car JL 171 Therefore, the Licensing Authority was justified in refusing his application andfor the respondent to affirm such decision in the hierarchical recouise as no car under such 40 registration was registered as a rural taxi or was operated as such so that it could be replaced with anothercar 86 3 C.L.R. 5 Hadjioannou \. Republic Sawides, J. The applicant as already mentioned, never challenged the decision of theLicensing Authority tosuspend thelicenceof car JL 171 as a rural taxi andnever apphed for alicence in respect of anew car for use as arural taxi What the applicanttriedto do was to reMve in an indirect way a licence which was suspended without the decision for the suspension of such licence having been challenged andthus surmount the obstacle of lack of legitimate interest due to lapse of time to challenge such decision 10 I find the contention of counsel for applicant that the sub judice decision was taken under a misconception of fact as entirely unfounded Thefact thatthere was no obiection by the other licensed taxi owners of Xylotymbou village is not a 15 matterwhich could be seriously taken into consideration mthe circumstances otthecase Furthermore,theallegation thatthere was nodueinquiry as totheneeds of thevillage of Xvlotympou for more taxis is again irrelevant because theauthority was not faced with an application to issue a new licence but with an 20 applicationfor thetransfer of anonexistmglicencefrom onecar to another. 25 Concerning the allegation of \iolation of Article 28. such allegation has notbeen substantiated andin any event itcannot promotefurther thegne\ anceof theapplicant caused tohim b> his failure to challenge the decision for the suspension of his licence which deprived him of alegitimate interest to challenge such decision either directly or indirectly. as mthe present case. after thelapse οΐ thetime prescribed bv the Constitution 30 35 Finally as to due reasoning Ifind that sufficient reasoning is gi\en in the judgment itself which in any eyent, on thebasis of the well established principles that the reasoning may be supplementedb\ thematerial inthefile, is amply supplemented in thepresent case For all the above reasons this tecourse fails and is hereby dismissed with £50- costs in favour of therespondent 40 Recourse dismissed with£50costs againstapplicant 87